stating that evidence of past instances of domestic abuse was admitted for the legitimate purpose of showing the defendant's motive


Context: Second, and for the sake of completeness, we note that in addition to the previously identified problem of the Federal Rules of Evidence not applying, many courts have permitted the introduction of similar evidence in the context of domestic violence to show intent, motive, and the general nature of the relationship.

See, e.g., State v. Brown, 900 A.2d 1155, 1161 (R.I. 2006) (stating that admission of uncharged instances of assault was permissible to show “an escalating pattern of domestic violence tended to establish defendant’s intent”); State v. Williams, 188 Vt. 405, 9 A.3d 315, 320 (2010) (holding prior instances of domestic assault admissible “to show the nature of the parties’ relationship and explain what might otherwise appear to be incongruous behavior to a jury, such as remaining with an abusive partner and delaying a report of abuse”); see also United States v. Faulls, 821 F.3d 502, 508-09 (4th Cir. 2016) (rea soning that admission of .prior acts of domestic violence was appropriate because evidence was relevant to motive and nature of relationship); Albrecht v. Horn, 485 F.3d 103, 127-28 (3d Cir. 2007) (stating that evidence of past instances of domestic abuse was admitted for the legitimate purpose of showing the defendant’s motive).

holding prior instances of domestic assault admissible "to show the nature of the parties' relationship and explain what might otherwise appear to be incongruous behavior to a jury, such as remaining with an abusive partner and delaying a report of abuse"


Context: Here, the appeal was from the denial of a petition for writ of error coram nobis and there was no motion for new trial. "In the absence of express statutory provisions, when an appeal is taken and perfected from the judgment of any court to a higher court, the jurisdiction vests at once in the higher court and such appeal divests the court from which it is taken of all jurisdiction."

"[T]he second sentencing of appellant by the trial court during the time this court had exclusive jurisdiction of the case [after the sentence had been reversed and while the appeal was pending on rehearing], and before the final decision of this court was a nullity.... was invalid and void."

See Pratte v. State, 465 So.2d 483, 484 (Ala.Cr.App.1985) (“[T]he second sentencing of appellant by the trial court during the time this court had exclusive jurisdiction of the case [after the sentence had been reversed and while the appeal was pending on rehearing], and before the final decision of this court was a nullity.... was invalid and void.”).

After a defendant has appealed, the circuit court is "without jurisdiction to grant and fix bail under SS 12-22-170, since, if the defendant has any rights under that section, he must proceed in the appellate court and not the circuit court."

See also State v. Williams, 19 Ala.App. 597, 99 So. 660 (1923) (After a defendant has appealed, the circuit court is “without jurisdiction to grant and fix bail under § 12-22-170, since, if the defendant has any rights under that section, he must proceed in the appellate court and not the circuit court.”); De Bardeleben v. State, 16 Ala.App. 367, 369, 77 So. 979 (1918) (same); Ex parte Alabama State Bar, 285 Ala. 191, 194, 230 So.2d 519 (1970) (“While the appeal suspends the execution of the sentence of the criminal court pending appeal, ... the matter of the conviction remains and continues to exist.”) Brown v. State, 250 Ala. 444, 447, 35 So.2d 518 (1948) (“We think the petition to the circuit court for the writ [of error coram nobis] was properly dismissed because that court had no jurisdiction to hear it while the appeal [of the conviction] was pending and undisposed of, ...


"While the appeal suspends the execution of the sentence of the criminal court pending appeal, ... the matter of the conviction remains and continues to exist."


Context: Thus, in contrast to Judge Coffey's representations, the Trust was funded with a significant portion of the Coffeys' assets, real and personal. Accordingly, we concur with the JCC's implicit finding that Judge Coffey was less than forthright, see AJS STUDY, supra at 82 (explaining how consideration should be given to whether a judge has offered an unlikely defense), and find that she made evasive and misleading statements to the JCC.

"We cannot give the respondent credit for cooperating with the disciplinary process when he misle[d] the referee about the extent of his misconduct."

See Fitzpatrick’s Case, 132 N.H. 211, 218 (1989) (finding that an attorney who attempts to mislead the PCC cannot be found to have fully cooperated); see also Basbanes’ Case, 141 N.H. at 7 (“We cannot give the respondent credit for cooperating with the disciplinary process when he misle[d] the referee about the extent of his misconduct.”).


Context: P 5. Although Bailey is a defendant in the underlying suit, he is not a party to the 54(b) judgment. " 'Standing' is a jurisdictional issue which may be raised by any party or the Court at any time." We find that Bailey does not have standing to appeal the 54(b) judgment as there is no evidence that he has a considerable stake in the outcome of this appeal.

"[a]s a general matter, a party who is not aggrieved by a judgment does not have standing to appeal it"

See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333-34, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) (a party cannot appeal from a judgment unless he retains a personal stake in the outcome and is “aggrieved” by the judgment); see also Klamath Strategic Inv. Fund ex rel. St. Croix Ventures v. United States, 568 F.3d 537, 546 (5th Cir.2009) (“[a]s a general matter, a party who is not aggrieved by a judgment does not have standing to appeal it”).

a party cannot appeal from a judgment unless he retains a personal stake in the outcome and is "aggrieved" by the judgment


Context: The district court did not abuse its discretion by denying leave to proceed in forma pauperis because it appears from the face of the complaint that Corelleone's allegations imply the invalidity of his conviction, and he has not shown that his conviction was overturned or otherwise invalidated.

an action for damages is not cognizable under 42 U.S.C. SS 1983 if "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence ... unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated"

See Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (an action for damages is not cognizable under 42 U.S.C. § 1983 if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence ... unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated”); see also Tripati, 821 F.2d 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.”).

"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."


Context: Second, the fact that the Defendants are all governmental entities is compelling as well. The public's interest in accessing a settlement forming part of the public record is strong enough as it is, but it becomes even more so when the government is a party to that agreement. In such cases, the right of access plays an important role in giving the public oversight of the government's actions, an interest long recognized by the courts.

holding that a group of concerned citizens could have ac cess to files relating to county officials' possible conversion of funds

See, e.g., Nixon, 435 U.S. at 597-598, 98 S.Ct. 1306 (noting that the right of access is especially important when sought to keep a watchful eye on the workings of public agencies); see also State ex rel. Colescott v. King, 154 Ind. 621, 57 N.E. 535 (1900) (holding that a group of concerned citizens could have ac cess to files relating to county officials’ possible conversion of funds); Ferry v. Williams, 1879 WL 7013, 41 N.J.L. 332, 336 (N.J.Sup.Ct.1879) (allowing a taxpayer access to papers related to applications for licenses to sell alcohol when taxpayer thought that law was not being followed).


allowing a taxpayer access to papers related to applications for licenses to sell alcohol when taxpayer thought that law was not being followed


Context: The Advisory Committee's notes to Rule 407 direct the court to consider the "event" as being the occurrence of injury. Id., advisory committee's note, 1997 amendments. The Fourth Circuit authority cited by Con-Way is not to the contrary.

See Chase v. General Motors Corp., 856 F.2d 17, 21 (4th Cir.1988) (excluding evidence of automobile recall in products liability action based on faulty brake design, but admitting evidence of changes in brake design that were made before plaintiffs accident); see also Werner v. Upjohn Co., 628 F.2d 848, 857-58 (4th Cir.1980) (applying rule in both negligence and strict liability actions, policy of rule being to encourage remedial measures).


Context: The admiralty statute does not limit jurisdiction to a particular party, as do the FTCA and the Federal Employers' Liability Act (FELA), 45 U.S.C. SS 51 et seq., 56.

45 U.S.C. SS 51 imposes liability on "[ejvery common carrier by railroad"

See Lockard v. Missouri Pac. R.R. Co., 894 F.2d 299 (8th Cir.1990) (45 U.S.C. § 51 imposes liability on “[ejvery common carrier by railroad”); see also Iron Workers MidSouth Pension Fund v. Terotechnology Corp., 891 F.2d 548, 551 (5th Cir.1990) (no pendent-party jurisdiction under Employee Retirement Income Security Act, 29 U.S.C. § 1132(e), over state-law claim to enforce lien).

no pendent-party jurisdiction under Employee Retirement Income Security Act, 29 U.S.C. SS 1132(e


Context: P 11. We acknowledge that a 2007 amendment indeed later authorized the involvement of law enforcement in investigations and specified that such authorized involvement included posing as a child. Nonetheless, the State indicted Shaffer prior to the 2007 amendment, and we refrain from retroactively applying any interpretation of the later-amended statute to Shaffer's case.

See United States v. Brown, 333 U.S. 18, 25, 68 S.Ct. 376, 92 L.Ed. 442 (1948) (A statute imposing criminal penalties must be “strictly construed” in favor of the accused.); Boatner v. State, 754 So.2d 1184, 1189 (¶ 14) (Miss.2000); see also Commonwealth v. Cauto, 369 Pa.Super. 381, 535 A.2d 602, 606-07 (1987) (Solicitation of sexual abuse does not require criminal behavior by the person being solicited but merely complicity or participation in the commission of a crime.). Thus, in applying section 97-5-33 as codified in 2006 to this case, as to the sufficiency of the evidence to prove the indicted offense of child exploitation, we fail to find any relief for the State’s burden to prove evidence of some involvement by a child. However, the record contains more than sufficient evidence proving Shaffer guilty of attempted child exploitation.

A statute imposing criminal penalties must be "strictly construed" in favor of the accused.


Context: As to the Barnett testimony, the prosecutor may not, by innuendo, attack a witness' credibility by asking about a witness' criminal conduct when the prosecutor has no basis for the question.

prosecutor may not question character witness about accused's misconduct absent good faith belief that misconduct occurred

See United States v. Davenport, 753 F.2d 1460, 1463-64 (9th Cir.1985) (prosecutor may not question character witness about accused’s misconduct absent good faith belief that misconduct occurred); 3A J. Wigmore, Evidence § 988, at 921 (Chadbourn rev. 1970) (attacking a witness’ character indirectly by insinuation “should be strictly supervised by forbidding it to counsel who do not use it in good faith”); see also United States v. Madden, 482 F.2d 850, 852 (8th Cir.), cert. denied, 414 U.S. 1026, 94 S.Ct. 453, 38 L.Ed.2d 318 (1973) (attempt to impeach witness by showing merely an accusation of misconduct has been uniformly prohibited).


Context: As the United States Supreme Court recognized, the court in a partnership-level TEFRA proceeding is "not required to shut its eyes" to the tax consequences of the court's decision, even if the "formal adjustment" of the partners tax liability will occur at a subsequent proceeding.

"[T]ax is paid only on the partner's individual returns, but [a partnership's] tax treatment is determined and assessed at the partnership level"

See BASR Partnership, 795 F.3d at 1364 (“[T]ax is paid only on the partner’s individual returns, but [a partnership’s] tax treatment is determined and assessed at the partnership level”); see also Keener, 551 F.3d at 1363 (holding that the statute of limitations is a “partnership item” under TEFRA); Prati v. United States, 603 F.3d 1301, 1307 (Fed. Cir. 2010) (“Based on Keener, we hold that the statute of limitations issue is a partnership item.”); see also I.R.C. §§ 6229 (providing the statute of limitations for assessing any tax attributable to a partnership item), 6501 (providing the statute of limitations for assessing tax under the I.R.C.).

holding that the statute of limitations is a "partnership item" under TEFRA


"Based on Keener, we hold that the statute of limitations issue is a partnership item."


Context: Carter's constructive discharge claim fails because he is unable to show the intolerable nature of the abuse he faced. The "severe and pervasive" standard required to state a hostile work environment claim is lower than the "intolerability" standard required for a constructive discharge claim, and thus a finding that Carter's hostile work environment claim is actionable does not necessitate a finding that he was constructively discharged.

"To prove constructive discharge, the plaintiff must demonstrate a greater severity of pervasiveness of harassment than the minimum required to prove a hostile work environment."

See Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050 (7th Cir.2000) (“[W]orking conditions for constructive discharge must be even more egregious than the high standard for hostile work environment.”); see also Spencer v. WalMart Stores, Inc., 469 F.3d 311, 317 (3d Cir.2006) (“To prove constructive discharge, the plaintiff must demonstrate a greater severity of pervasiveness of harassment than the minimum required to prove a hostile work environment.”); Griffin v. Delchamps, Inc., 176 F.3d 480 (5th Cir.1999) (same).

"[W]orking conditions for constructive discharge must be even more egregious than the high standard for hostile work environment."


Context: Our starting point is the text of the IDEA. When Congress provides a "detailed exhaustion scheme," courts generally lack discretion to add additional exhaustion requirements to the scheme.

holding that detailed exhaustion scheme of the Civil Rights of Institutionalized Persons Act ("CRIPA"

Patsy, 457 U.S. at 509-511, 102 S.Ct. 2557 (holding that detailed exhaustion scheme of the Civil Rights of Institutionalized Persons Act (“CRIPA”) “is inconsistent with discretion to impose, on an ad hoc basis, a judicially developed exhaustion rule in other cases”); see also Darby v. Cisneros, 509 U.S. 137, 146-47, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) (holding that it would be inconsistent with Congress’ intent to require exhaustion of “optional appeals” through state procedures after “an aggrieved party has exhausted all administrative remedies expressly prescribed” by Congress in the Administrative Procedures Act (“APA”)).

holding that it would be inconsistent with Congress' intent to require exhaustion of "optional appeals" through state procedures after "an aggrieved party has exhausted all administrative remedies expressly prescribed" by Congress in the Administrative Procedures Act ("APA"


Context: Upon being informed of his rights by a CID agent, PFC Reeves requests ed counsel and the CID agent terminated the interview. Later that day, when PFC Reeves was being in-processed for pretrial confinement, his company commander went to see PFC Reeves and "talk to [him]." Id. at 235. The CMA held that PFC Reeves's company commander had interrogated PFC Reeves; however, the CMA remanded the ease to the lower court as to whether PFC Reeves "initiated" the conversation with the company commander, which if true, "would [make PFC Reeves's statements] admissible."

stating that "a suspect who is in custody and has requested counsel cannot be interrogated unless and until he has 'initiated' a discussion"

Id. at 237 (citing Bradshaw); see United States v. Jordan, 29 M.J. 177, 191 (C.M.A.1989) (stating that “a suspect who is in custody and has requested counsel cannot be interrogated unless and until he has ‘initiated’ a discussion”) (Everett, C.J., dissenting) (citations omitted); see also United States v. Watkins, 34 M.J. 344, 347 (C.M.A.1992) (plurality) (stating that Specialist Watkins, after having invoked his right to counsel, “initiated the subsequent exchange by asking the agent whether he preferred military or civilian counsel and how much punishment [he] was facing”).

stating that Specialist Watkins, after having invoked his right to counsel, "initiated the subsequent exchange by asking the agent whether he preferred military or civilian counsel and how much punishment [he] was facing"


Context: One important factor in determining whether a claimant has elected to proceed in admiralty is whether he demanded a jury trial.

'Where a claim is made in accordance with Rule 9(h

Lewis v. United States, 812 F.Supp. 620, 627 (E.D.Va.1993) (holding that a demand for a trial by jury “is inconsistent with an intent to proceed in admiralty”); cf. Royal Ins. Co. of Am. v. Hansen, 125 F.R.D. 5, 8 (D.Mass.1988) (‘Where a claim is made in accordance with Rule 9(h), the existence of diversity as an alternative basis of jurisdiction will not entitle plaintiff to a jury trial.”); Banks v. Hanover Steamship Corp., 43 F.R.D. 374, 376-77 (D.Md.1967) (holding that a complaint that asserts both admiralty jurisdiction and diversity jurisdiction is not an adequate 9(h) designation to trigger admiralty procedures).

holding that a demand for a trial by jury "is inconsistent with an intent to proceed in admiralty"


holding that a complaint that asserts both admiralty jurisdiction and diversity jurisdiction is not an adequate 9(h


Context: We recognize that this decision runs counter to the numerical weight of authority in other jurisdictions where courts have interpreted either the original federal definition of "wire communication" or similar defi nitions in their own states.

See Tyler v. Berodt, 877 F.2d 705 (8th Cir. 1989), cert. denied, 493 U.S. 1022, 110 S. Ct. 723, 107 L. Ed. 2d 743 (1990) (radio portion of cordless telephone conversations not protected by 1968 federal wiretap act); State v. Howard, 235 Kan. 236, 679 P.2d 197 (1984) (same); State v. Delaurier, 488 A.2d 688 (R.I. 1985) (same); State v. Smith, 149 Wis. 2d 89, 438 N.W.2d 571 (1989) (radio portion of cordless telephone conversations not a “wire communication” as defined in Wisconsin Electronic Surveillance Control Law); see also Edwards v. Bardwell, 632 F. Sup. 584 (M.D. La.), aff'd, 808 F.2d 54 (5th Cir. 1986) (radio portion of automobile telephone communications not protected by 1968 federal wiretap act); Dorsey v. State, 402 So. 2d 1178 (Fla. 1981) (messages sent through pocket pagers not “wire communications” under Florida statute because statute applies “only to so much of the communication as is actually transmitted by wire and not broadcast in a manner available to the public”); but see United States v. Hall, 488 F.2d 193 (9th Cir. 1973) (1968 federal definition of “wire communication” includes conversations over automobile radio telephones); People v. Fata, 159 App. Div. 2d 180, 559 N.Y.S.2d 348 (1990) (state statutory definition of “telephonic communication” encompasses cordless telephone communication).


messages sent through pocket pagers not "wire communications" under Florida statute because statute applies "only to so much of the communication as is actually transmitted by wire and not broadcast in a manner available to the public"


1968 federal definition of "wire communication" includes conversations over automobile radio telephones


state statutory definition of "telephonic communication" encompasses cordless telephone communication


radio portion of cordless telephone conversations not a "wire communication" as defined in Wisconsin Electronic Surveillance Control Law


Context: . Though styled a "conditional cross-appeal" in plaintiffs' response brief, we construe the argument as an alternative legal justification for the district court's judgment.

"Appellate courts reviewing grants of summary judgment may affirm on any grounds supported by the record."

See ASARCO, Inc. V. Secy of Labor, 206 F.3d 720, 722 (6th Cir.2000) ("It is a well settled principle that a prevailing party cannot appeal an unfavorable aspect of a decision in its favor.”); see also Freeze v. City of Decherd, 753 F.3d 661, 664 (6th Cir.2014) ("Appellate courts reviewing grants of summary judgment may affirm on any grounds supported by the record.”); Abel v. Dubberly, 210 F.3d 1334, 1338 (11th Cir.2000) (applying similar standard to post-trial motions for judgment as a matter of law, considering preserved alternative legal arguments).

"It is a well settled principle that a prevailing party cannot appeal an unfavorable aspect of a decision in its favor."


applying similar standard to post-trial motions for judgment as a matter of law, considering preserved alternative legal arguments


Context: The PCRA provides specific criteria to be eligible for relief, requiring a petitioner to be serving a sentence and be able to prove that the conviction resulted from one of several enumerated events, including the ineffective assistance of counsel. See 42 Pa.C.S. 9543(a). Because Petitioner alleged claims of ineffective assistance of counsel, her claims were cognizable under the PCRA and the writ of habeas co'rpus was not available.

See Peterkin, 722 A.2d at 641 (holding that because an untimely PCRA petition was premised on claims that were cognizable under the PCRA, the statutory writ of habeas corpus was unavailable).

"rare instances" in which review outside of the PCRA is possible are those in which the petitioner "never was eligible for review under the PCRA."

See also Commonwealth v. Hall, 565 Pa. 92, 771 A.2d 1232, 1236-37 (2001) (“rare instances” in which review outside of the PCRA is possible are those in which the petitioner “never was eligible for review under the PCRA.”); 42 Pa.C.S. § 6503(b) (“Where a person is restrained by virtue of sentence after conviction for a criminal offense, the writ of habeas corpus shall not be available if a remedy may be had by post-conviction hearing proceedings authorized by law.” (emphasis added)).


Context: . While it is incumbent upon this Court to refrain from the politics of insurance rate making, this Court encourages persons aggrieved by the regulatory policies and decisions of the Commissioner to rely upon the political process for accountability purposes.

"We are not at liberty to affirm or overturn the [Tax] Commissioner's regulation or decision merely on the basis of our agreement or disagreement with his policy implications"

See Appalachian Power, 195 W.Va. at 588, 466 S.E.2d at 439 ("We are not at liberty to affirm or overturn the [Tax] Commissioner’s regulation or decision merely on the basis of our agreement or disagreement with his policy implications”); see also State ex rel. Carenbauer v. Hechler, 208 W.Va. 584, 589, 542 S.E.2d 405, 410 (2000) ("While the reasons for separating the judiciary from politics are many and varied, there can be no question that the goal of removing politics and its attendant imbroglios from the judicial process is necessary to the proper functioning of our judicial system.”).

"While the reasons for separating the judiciary from politics are many and varied, there can be no question that the goal of removing politics and its attendant imbroglios from the judicial process is necessary to the proper functioning of our judicial system."


Context: Plaintiff asserts that his administrative discharge resulted in the stigmatization of his name because of the Other Than Honorable status, thereby invoking a liberty interest for which he was denied. The court recognizes Mr. Weaver was stigmatized by the Other Than Honorable administrative discharge for reasons of sexual misconduct and, therefore, was entitled to due process.

See Canonica v. United States, 41 Fed.Cl. 516, 524 (1998) (citations omitted) (noticing that, although enlisted members of the armed forces do not retain a property interest in their employment because they may be discharged by the secretary of the individual service, they do hold a liberty interest in their employment); Keef v. United States, 185 Ct.Cl. 454, 467, 1968 WL 9154 (1968) (stigma attaches when, inter alia, the discharge certificate denotes the separation took place under derogatory circumstances); see also Correa v. Clayton, 563 F.2d 396, 397 fn. 1 (9th Cir.1977) (citations omitted) (stigmatization may occur upon the reception of a general discharge because the majority of discharges are honorable ones, and may result in significant disadvantages in the job market).


Context: A review of the record reveals that Defendants did argue, during their Rule 29 motions, that the government had not proved the MS was subject to United States jurisdiction; but Defendants made no objection to the district court's failure to instruct the jury that it must find that the MS was subject to United States jurisdiction. Under these circumstances, we would normally agree with the government that plain error review applies.

See also United States v. Madruga, 810 F.2d 1010, 1014 (11th Cir.1987) (district court has no duty to interpret imaginatively what lawyers say).

See United States v. Starke, 62 F.3d 1374, 1380-81 (11th Cir.1995) (to preserve objection to jury instructions, party must object before jury retires, stating distinct grounds for objection).


Context: Illinois courts have allowed non-consumers to bring actions under the Illinois Fraud Act in certain situations, such as when a deceptive statement to consumers alters the natural competition in the marketplace.

See, e.g., Browning v. AT & T Corp., 682 F.Supp.2d 832, 843 n. 7 (N.D.Ill. 2009) (stating that "[c]ourts have occasionally held that a claim can be stated under the [Illinois Fraud Act] even where the alleged deceptive statements are not directed specifically at the plaintiff" but that "these cases are typically brought by corporate plaintiffs or involve allegations that the defendant was engaged in an attempt to deceive the public generally"); See also Russian Media Group, LLC v. Cable America, Inc., 2008 WL 360692, at *3 (N.D.Ill.2008) (stating that "[c]ourts have allowed businesses to sue under the [Illinois Fraud Act] for competitive injury when other businesses deceive customers" and "[i]n such situations, there is no requirement that the deceptive conduct be aimed at the plaintiff").


Context: This interpretation is also supported by reading the language of section 40-6-118(6) in tandem with the court's duties under seetion 40-6-115(3) to determine whether the PUC has regularly pursued its authority, whether the decision of the PUC is just and reasonable, and whether the PUC's conclusions are in accordance with the evidence. We have previously stated that in order to fulfill its duties, a reviewing court should have the same information available to it as the agency did in making its decision.

Geer v. Stathopulos, 135 Colo. 146, 154, 309 P.2d 606, 610-11 (1957) (noting that a court reviewing the action of an administrative agency should be placed in the same position as such agency, and therefore the agency's knowledge of a fact that is acted upon should become part of the record).

See also Pub. Citizen v. Heckler, 653 F.Supp. 1229, 1236 (D.D.C.1987) ("if a court is to review an agency's action fairly, it should have before it neither more nor less information than did the agency when it made its decision") (qguot-ing Walter O.


Context: Four years later, in 1991, the General Assembly amended the Public Records Act by replacing the phrase "state statute" with the phrase "state law." This Court has since held that the phrase "state law," added by the 1991 amendment, encompasses the Rules of Civil Procedure such that documents shielded by the Rules need not be disclosed pursuant to the Public Records Act.

See Ballard, 924 S.W.2d at 662 (holding that the Public Records Act does not mandate disclosure of documents sealed by a protective order entered pursuant to the Tennessee Rules of Civil Procedure); see also Swift v. Campbell, 159 S.W.3d 565, 576 (Tenn.Ct.App.2004), perm. appeal denied (Tenn.2005) (holding that the Public Records Act does not mandate disclosure of records protected by Tennessee Rule of Criminal Procedure 16); Arnold, 19 S.W.3d at 786 (holding that the Public Records Act does not mandate disclosure of documents protected by the work product doctrine, codified as Tennessee Rule of Civil Procedure 26.02).


holding that the Public Records Act does not mandate disclosure of documents protected by the work product doctrine, codified as Tennessee Rule of Civil Procedure 26.02


Context: This argument is unavailing because Ramadan is not in tension with Fernandez. Ramadan did not change the legal landscape as to either constitutional claims (which could already be filed in this court under Fernandez) or as to non-constitutional challenges to the BIA's discretionary denials of motions to reopen (which still cannot be appealed to our court after Ramadan).

holding that Ramadan is inapplicable to the " 'exceptional and extremely unusual hardship' standard" because it is "subjective" unlike the " 'changed circumstances' standard" at issue in Ramadan

See Ramadan, 479 F.3d at 654 (holding that the REAL ID Act “does not restore jurisdiction over discretionary determinations”); see also Mendez-Castro, 552 F.3d at 980-81 (holding that Ramadan is inapplicable to the “ ‘exceptional and extremely unusual hardship’ standard” because it is “subjective” unlike the “ ‘changed circumstances’ standard” at issue in Ramadan).

holding that the REAL ID Act "does not restore jurisdiction over discretionary determinations"


Context: . This concept of disproportionality is not foreign to Fourth Amendment analysis. "The logic of distinguishing between minor and serious offenses in evaluating the reasonableness of ... searches is almost too clear for argument."

"[A] finding of exigent circumstances to justify a warrantless home entry should be severely restricted when only a minor offense has been committed .... "

New Jersey v. T.L.O., 469 U.S. 325, 380, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (Stevens, J., concurring & dissenting) (discussing the scope of school searches); cf. Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) ("[A] finding of exigent circumstances to justify a warrantless home entry should be severely restricted when only a minor offense has been committed .... ”); McDonald v. United States, 335 U.S. 451, 459, 69 S.Ct. 191, 93 L.Ed. 153 (1948) (Jackson, J., concurring) ("It is to me a shocking proposition that private homes ... may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it.”); but cf. United States v. Robinson, 414 U.S. 218, 234-35, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (finding an arrestee's charges to be irrelevant to the blanket constitutionality of searches incident to arrest).


Context: In ground three of his January 21, 2014 motion, appellant alleged that defense counsel was ineffective for failing to move for dismissal of the charges for felon in possession of a firearm and felon in possession of ammunition after his conviction for armed burglary, on double jeopardy grounds: He contended he could not be convicted of possessing the same firearm or ammunition that served as the basis for his armed burglary conviction. In his initial brief, however, appellant contends that his dual convictions for felon in possession of a firearm and felon in possession of ammunition violate double jeopardy proscriptions, and that one of these convictions should be vacated, without regard to the armed burglary conviction.

See Bell v. State, 122 So.3d 958, 961 (Fla. 2d DCA 2013) (holding that double jeopardy precludes dual convictions for felon in possession of a firearm and felon in possession of [separate] ammunition because section 790.23(1), Florida Statutes prohibits possession of “ ‘any firearm, ammunition, or electric weapon or device’” (emphasis in original)); see also Strain v. State, 77 So.3d 796, 797 (Fla. 4th DCA 2011) (same and remanding for the trial court to vacate the conviction for felon in possession of ammunition because the conviction for felon in possession of a firearm carried a three-year minimum mandatory sentence).


Context: The district court properly granted summary judgment on Salerno's remaining First and Fourth Amendment claims because Salerno failed to raise a genuine dispute of material fact as to whether defendants violated his rights by reading and investigating the contents of the letter to Salerno's attorney after defendants were notified of the threat posed by the letter.

See Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (discussing factors for determining whether regulation that impinges on First Amendment rights is reasonably related to legitimate penological interests); Thompson v. Souza, 111 F.3d 694, 699 (9th Cir.1997) (the reasonableness of searches and seizures by prison officials should be analyzed in light of the Turner factors); see also Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (prison officials “should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security”).

prison officials "should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security"


the reasonableness of searches and seizures by prison officials should be analyzed in light of the Turner factors


Context: A carve out may not exist unless ordered, or approved by the Court with the consent of the affected secured creditor.

essential to a carve out is "the agreement between the secured party and the beneficiary of the carve out"

See In re White Glove, Inc., 1998 WL 731611, at *6 (essential to a carve out is “the agreement between the secured party and the beneficiary of the carve out”); In re Blackwood Assoc., 153 F.3d at 68 (“a secured creditor’s collateral may only be diminished to the extent that the secured creditor waives its right to the protections afforded by the Code”); see also In re Trim-X Inc., 695 F.2d 296, 301 (7th Cir.1982) (the estate, and not the secured creditor, bears the cost of the administrative expenses of the estate).


"a secured creditor's collateral may only be diminished to the extent that the secured creditor waives its right to the protections afforded by the Code"


Context: See Fed.R.Civ.P. 45(b). A determination of a subpoena's reasonableness requires the court to balance the interests served by complying with the subpoena against the interests served by quashing it.

suggesting that need is one factor of a subpoena's reasonableness

See In re Garcia, 76 B.R. 68, 69 (E.D.Pa.) (affirming denial of motion to quash in part because subpoenaed lawfirm records “relevant and not available from any other source”) (emphasis added), aff'd, 838 F.2d 460 (3d Cir.1987); In re National Trade Corp., 28 B.R. at 875 (recognizing relevance of information and that “need for this information outweighs the burden to [appellants]”); see also Herron, 264 F.2d at 725 (suggesting that need is one factor of a subpoena’s reasonableness).

balancing "the benefit of the information against the burden of production"

See Herron v. Blackford, 264 F.2d 723, 725 (5th Cir.1959) (holding that court should balance competing interests); In re National Trade Corp., 28 B.R. 872, 874 (Bankr.N.D.Ill.1983) (balancing “the benefit of the information against the burden of production”). This balancing of benefits against burdens calls for the court to consider, inter alia, whether the information is necessary and unavailable from any other source.


affirming denial of motion to quash in part because subpoenaed lawfirm records "relevant and not available from any other source"


recognizing relevance of information and that "need for this information outweighs the burden to [appellants]"


Context: Second, it was not Dawkins himself who "wrote" Scott up -- as Dawkins was not Scott's superior -- but rather a captain. See Scott Dep. at 335. The complaint contains only allegations regarding Dawkins, however. Moreover, to the extent that Dawkins "assisted" a captain in "writing] her up" frivolously, this evidence alone is insufficient to show adverse action, as writing a reprimand for violating company policy does not itself constitute an adverse employment action.

"An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience ... 'personality conflicts at work that generate antipathy' and 'snubbing by supervisors and co-workers are not actionable under SS 704(a

See Cody v. County of Nassau, 577 F.Supp.2d 623, 645 (E.D.N.Y.2008) (defendant’s “falsely accusing plaintiff of being absent without authorization,” “threatening plaintiff with future counseling notices and disciplinary actions,” “writing plaintiff up for leaving work early,” and similar actions were not adverse employment actions); Nix v. Cino, 2006 WL 2711625, at *5 (E.D.N.Y. Sept. 21, 2006) (“Mere reprimands or threats of disciplinary action, absent any other negative results, such as a decrease in pay, do not qualify as adverse employment actions.”); cf. White, 548 U.S. at 68, 126 S.Ct, 2405 (“An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience ... ‘personality conflicts at work that generate antipathy’ and ‘snubbing by supervisors and co-workers are not actionable under § 704(a).’ ”) (citations omitted).

defendant's "falsely accusing plaintiff of being absent without authorization," "threatening plaintiff with future counseling notices and disciplinary actions," "writing plaintiff up for leaving work early," and similar actions were not adverse employment actions


"Mere reprimands or threats of disciplinary action, absent any other negative results, such as a decrease in pay, do not qualify as adverse employment actions."


Context: From the time Lovasco was decided in 1977, the United States Supreme Court has not granted certiorari to discuss in more depth the due process standard as established by Marion and Lovasco, and has only tangentially discussed the Marion/Lovasco standard in cases involving other issues.

in a case concerning whether defendant's due process rights were violated by the police destruction of evidence in the absence of bad faith motives by the police, the Court cited Marion's language that "no actual prejudice to the conduct of the defense is alleged and proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them"

See also Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 883, 102 L.Ed.2d 281 (1988) (in a case concerning whether defendant’s due process rights were violated by the police destruction of evidence in the absence of bad faith motives by the police, the Court cited Marion’s language that “no actual prejudice to the conduct of the defense is alleged and proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them”).

in a case involving right to appointment of counsel for federal prison inmates who were placed in administrative detention pending indictment for crimes committed in prison, the Court stated, in dicta, "the Fifth Amendment requires the dismissal of an indictment, even if it is brought within the statute of limitations, if the defendant can prove that the Government's delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice"

See United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984) (in a case involving right to appointment of counsel for federal prison inmates who were placed in administrative detention pending indictment for crimes committed in prison, the Court stated, in dicta, “the Fifth Amendment requires the dismissal of an indictment, even if it is brought within the statute of limitations, if the defendant can prove that the Government’s delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice”).


Context: The parties did not advance this ground before the district court -- i.e., focusing on Mr. Pursley's opportunity vel non to cross -- examine Mr. Cluff-nor did the district court address it. However, we clearly have the discretion under certain specified circumstances to affirm a district court on a previously unexplored ground.

"[W]hen the judgment of a district court is correct, it may be affirmed for reasons not given by the court and not advanced to it."

See Ledford, 443 F.3d at 707 (“We may affirm the rulings of the lower court on any ground that finds support in the record, even where the lower court reached its conclusions from a different or even erroneous course of reasoning.” (internal quotation marks omitted)); United States v. Sandia, 188 F.3d 1215, 1217-18 (10th Cir.1999) (“[W]e are free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.” (alteration in original) (internal quotation marks omitted)); see also Laird v. Shell Oil Co., 770 F.2d 508, 511 (5th Cir.1985) (“[W]hen the judgment of a district court is correct, it may be affirmed for reasons not given by the court and not advanced to it.”).

"[W]e are free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court." (alteration in original


Context: . With the exception of the driver's nervousness, Officer Lewis learned or observed nothing new during the stop that would reason ably lead to any heightened suspicion.

Cf. Amorella, 554 S.W.2d at 701 (reasonable suspicion for stop when vehicle observed with its lights on and motor running in department store parking lot in high crime area at 1:30 a.m. with several individuals standing around an open trunk which was immediately closed and the car driven away when the police were spotted); Lopez v. State, 223 S.W.3d 408, 415 (Tex.App.-Amarillo 2006, no pet.) (reasonable suspicion existed for further detention of defendant stopped in high crime area when officer observed plastic baggie in crease of gas cap compartment); Strauss, 121 S.W.3d at 491-92 (prolonged detention of traffic stop reasonable where inconsistent answers by passenger and driver to questions about ownership of car and intended destination, large amount of detergent in car consistent with efforts to mask the smell of drugs, and smell of burnt marihuana created reasonable suspicion); Freeman v. State, 62 S.W.3d 883, 888 (Tex.App.-Texarkana 2001, pet. ref’d) (prolonged detention of traffic stop reasonable where inconsistent answers by passenger and driver to "basic questions," use of rental car, and smell of marihuana in car detected while officer talked to passenger sufficient for reasonable suspicion).

See, e.g., Davis, 947 S.W.2d at 245-46 (no reasonable suspicion to detain when officers concluded out-of-state driver was not intoxicated but they also believed the driver was not on a business trip as represented); White v. State, 574 S.W.2d 546, 547 (Tex.Crim.App.1978) (reasonable suspicion did not exist where vehicle observed driving aimlessly in mall parking lot even though there had been a rash of purse snatchings in the parking lot); State v. Losoya, 128 S.W.3d 413, 415 (Tex.App.-Austin 2004, pet. ref’d) (no reasonable suspicion when officers, acting on an anonymous tip of a "black male” involved in narcotics activity, observed a "black male” make a "hasty” departure from high crime area after observing the police); Klare v. State, 76 S.W.3d 68, 72, 77 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (no reasonable suspicion where pickup truck was observed parked behind a shopping center at 2:30 a.m., all the businesses were closed and the shopping center had been burglarized a number of times); Davis v. State, 61 S.W.3d 94, 98-99 (Tex.App.-Amarillo 2001, no pet.) (no reasonable suspicion where a group of people were gathered in a yard located in a neighborhood known for drug trafficking and defendant was observed walking to and from the group several times).


reasonable suspicion existed for further detention of defendant stopped in high crime area when officer observed plastic baggie in crease of gas cap compartment


prolonged detention of traffic stop reasonable where inconsistent answers by passenger and driver to questions about ownership of car and intended destination, large amount of detergent in car consistent with efforts to mask the smell of drugs, and smell of burnt marihuana created reasonable suspicion


prolonged detention of traffic stop reasonable where inconsistent answers by passenger and driver to "basic questions," use of rental car, and smell of marihuana in car detected while officer talked to passenger sufficient for reasonable suspicion


reasonable suspicion did not exist where vehicle observed driving aimlessly in mall parking lot even though there had been a rash of purse snatchings in the parking lot


no reasonable suspicion when officers, acting on an anonymous tip of a "black male" involved in narcotics activity, observed a "black male" make a "hasty" departure from high crime area after observing the police


no reasonable suspicion where a group of people were gathered in a yard located in a neighborhood known for drug trafficking and defendant was observed walking to and from the group several times


Context: The prerecorded MITS message explicitly advises that "[a]ll call detail and conversation, excluding approved attorney calls, will be recorded," see supra p. 296 (emphasis added), thereby informing the call recipient that the entire "contents" will be intercepted. Consequently, notwithstanding the absence of explicit notice of the lesser intrusion represented by possible monitoring of call content, the recipient is fully informed of the greater intrusion; viz., that the entire conversation, as well as all call "detail," unll be intercepted and recorded. Thus, since the MITS records the entire conversation, any concurrent aural monitoring by authorized DOC officials in no sense exceeds the dimensions of the broad implied consent given to record all call "content," including call "detail."

stating that implied consent obtains where party to conversation was provided with at least "minimal knowledge" of scope of interception

See Griggs-Ryan, 904 F.2d at 114, 116-19 (finding implied consent to interceptions, consisting of concurrent aural monitoring and recording of telephone conversations, after plaintiff had been informed of the recording only and no restrictions had been placed on the scope of the interceptions); see also Williams, 11 F.3d at 282 (stating that implied consent obtains where party to conversation was provided with at least “minimal knowledge” of scope of interception). Therefore, based on the relevant authoritative decisions, it is at the very least an open question whether the express prior consent provided by MITS-call recipients to the recordation of all call “content” constitutes implied consent to monitoring.


Context: Reducing the Van Nattas' complaint to its core reveals the fact that all of their state law claims are premised upon alleged improper processing of a claim for benefits under an employee-benefit plan. As the Supreme Court and Eighth Circuit have previously reiterated, such claims undoubtedly meet the criteria for preemption under SS 514(a), even if the state statutes at issue do not expressly make reference to ERISA plans.

See Pilot Life Ins. Co., 481 U.S. at 47-48, 107 S.Ct. 1549 (finding that the plaintiffs claims, each based on alleged improper processing of a claim for benefits under a qualified ERISA plan, “undoubtedly” met the criteria for preemption under § 514(a), despite the fact the state laws at issue did not expressly reference ERISA plans); Kuhl, 999 F.2d at 302 (having no difficulty concluding the plaintiffs’ claims, all arising from the administration of benefits under a qualified ERISA plan were preempted by ERISA); see also Parkman v. Prudential Ins. Co. of Am., 439 F.3d 767, 771-72 (8th Cir.2006) (“ERISA preempts ‘state common law tort and contract actions asserting improper processing of a claim for benefits’ under an ERISA plan.”) (quoting Pilot Life Ins. Co.); Fink v. Dakotacare, 324 F.3d 685, 689 (8th Cir.2003) (holding that state law causes of action arising from improper processing of a claim for benefits are preempted); Howard v. Coventry Health Care, of Iowa, Inc., 293 F.3d 442, 446 (8th Cir.2002) (holding that the plaintiffs’ causes of action were preempted because their claims were premised on the existence of an ERISA plan); Thompson v. Gencare Health Sys., Inc., 202 F.3d 1072, 1073 (8th Cir.2000) (“ERISA remedies preempt ‘state common law tort and contract actions asserting improper processing of a claim for benefits’ under an ERISA plan.”) (quoting Pilot Life Ins. Co.); Hull v. Fallon, 188 F.3d 939, 943 (8th Cir.1999) (holding that where the basis of state claims for medical malpractice relates to the administration of plan benefits, those claims “fall squarely within the scope” of ERISA); accord McDonald v. Household Int’l, Inc., 425 F.3d 424, 429 (7th Cir.2005) (finding that the plaintiffs state law claims premised on the defendants’ failure to give the plaintiff the benefits under the medical plan he had been promised were preempted); Gilbert v. Burlington Indus., Inc., 765 F.2d 320, 328 (2d Cir.1985) (citing numerous cases finding claims for recovery of benefits preempted by ERISA), aff'd, 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 558 (1986); Schwartz v. Newsweek, Inc., 653 F.Supp. 384, 389 (S.D.N.Y.1986) (citing decisions holding claims for recovery of alleged benefits preempted under ERISA), aff'd, 827 F.2d 879 (1987).

finding that the plaintiffs claims, each based on alleged improper processing of a claim for benefits under a qualified ERISA plan, "undoubtedly" met the criteria for preemption under SS 514(a


holding that the plaintiffs' causes of action were preempted because their claims were premised on the existence of an ERISA plan


holding that where the basis of state claims for medical malpractice relates to the administration of plan benefits, those claims "fall squarely within the scope" of ERISA


having no difficulty concluding the plaintiffs' claims, all arising from the administration of benefits under a qualified ERISA plan were preempted by ERISA


Context: Whatever thin thread of support a jury might find in the decoy-molecule hypothetical simply cannot bear the weight of the vast scope of these generic claims.

See LizardTech, 424 F.3d at 1345 (holding that “[a]fter reading the patent, a person of skill in the art would not understand” the patentee to have invented a generic method where the patent only disclosed one embodiment of it); Reiffin, 214 F.3d at 1345-46 (noting that the “scope of the right to exclude” must not “overreach the scope of the inventor’s contribution to the field of art as described in the patent specification”); Fiers, 984 F.2d at 1171 (“Claiming all DNA[s] that achieve a result without defining what means will do so is not in compliance with the description requirement; it is an attempt to preempt the future before it has arrived.”); cf. Carnegie Mellon, 541 F.3d at 1126 (holding that the narrow description of the E. coli polA gene did not adequately support a broad claim to the gene from any bacterial source).

holding that "[a]fter reading the patent, a person of skill in the art would not understand" the patentee to have invented a generic method where the patent only disclosed one embodiment of it


noting that the "scope of the right to exclude" must not "overreach the scope of the inventor's contribution to the field of art as described in the patent specification"


Context: But notice of the settlement agreement without more leaves Corn-erica's right to challenge the district court's damages determination unaffected. The Owner-Operators could bind Comeri-ca only through joining them as a party to the earlier litigation.

"Joinder as a party, rather than knowledge of a lawsuit and an opportunity to intervene, is the method by which potential parties are subjected to the jurisdiction of the court and bound by a judgment or decree."

See Martin v. Wilks, 490 U.S. 755, 765, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) (“Joinder as a party, rather than knowledge of a lawsuit and an opportunity to intervene, is the method by which potential parties are subjected to the jurisdiction of the court and bound by a judgment or decree.”); see also City of Warren v. City of Detroit, 495 F.3d 282, 286 (6th Cir.2007) (acknowledging that a non-party to a consent judgment “is entitled to its ‘own day in court’ to challenge actions taken under the judgments”).

acknowledging that a non-party to a consent judgment "is entitled to its 'own day in court' to challenge actions taken under the judgments"


Context: Under that analysis, once a plaintiff has produced evidence of pretext, the employer's justification vanishes and the original McDonnell Douglas inference of discrimination rises again, automatically overcoming summary judgment. We reject that formalistic approach as not in keeping with either Supreme Court doctrine or common sense.

the McDonnell Douglas model "was not intended to be rigid, mechanized or ritualistic."

See Furnco Constr. Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (the McDonnell Douglas model “was not intended to be rigid, mechanized or ritualistic.”). Depending on the facts and circumstances of each case, the original prima facie case plus the evidence of pretext may suffice to raise an inference of discrimination, or additional evidence may be required. There is no absolute rule that a discrimination plaintiff must adduce evidence in addition to that comprising the prima facie case and the rebuttal of defendant’s justification in order to prevail either at the summary judgment stage or at trial. See Connell, 924 F.2d at 1172 n. 3; but see Olivera, 922 F.2d at 48 (stating that in this circuit a plaintiff must adduce additional evidence of discrimination). “Rather, the evidence as a whole, whether direct or indirect, must be sufficient for a reasonable factfinder to infer that the employer’s decision was motivated by [discriminatory] animus.”


Context: We believe that a close examination of the case law in this Circuit and elsewhere indicates that the search here in question may be characterized correctly as a routine border search not requiring reasonable suspicion.

Grotke, supra, 702 F.2d at 51-52 (patdown followed by removal of shoes held “ ‘minimally intrusive’ ” routine border search, quoting Nieves, supra, 609 F.2d at 646); United States v. Moody, 649 F.2d 124, 126-27 (2 Cir.1981) (border “patdown” followed by request that defendant pull down girdle in private room did not necessarily require reasonable suspicion); Luc-Thirion, supra, 501 F.Supp. at 878-79 (removal of jacket and patdown of border entrant did not require reasonable suspicion); see also United States v. Braks, 842 F.2d 509, 512-15 (1 Cir.1988) (lifting up of skirt by defendant in private room revealing bulge of drugs in girdle, held part of routine border search and did not necessarily require any degree of suspicion); United States v. Oyekan, 786 F.2d 832, 835 (8 Cir.1986) (initial patdown followed by search of defendants’ luggage and purses held routine border search); cf. United States v. Fitzgibbon, 576 F.2d 279, 281, 284 (10 Cir.) (patdown followed by request that defendant remove boot not equivalent to “strip search”), cert. denied, 439 U.S. 910 [99 S.Ct. 279, 58 L.Ed.2d 256] (1978).

patdown followed by removal of shoes held " 'minimally intrusive' " routine border search, quoting Nieves, supra, 609 F.2d at 646


initial patdown followed by search of defendants' luggage and purses held routine border search


patdown followed by request that defendant remove boot not equivalent to "strip search"


border "patdown" followed by request that defendant pull down girdle in private room did not necessarily require reasonable suspicion


removal of jacket and patdown of border entrant did not require reasonable suspicion


Context: The trustee broadly contends that a receiver's common law protection from being sued in a non-appointing court only applies to claims which arose after the appointment of the receiver. The trustee, however, refers to no decision so holding, and there are cases to the contrary.

See Porter v. Sabin, 149 U.S. at 473, 13 S.Ct. 1008 (recognizing that the claim at issue arose prior to the appointment of the receiver); see also Riehle v. Margolies, 279 U.S. 218, 49 S.Ct. 310, 73 L.Ed. 669 (1929) (holding that a party may prosecute a claim which arose prior to the appointment of the receiver but may not then execute upon the judgment); cf. McNulta v. Lochridge, 141 U.S. 327, 12 S.Ct. 11, 35 L.Ed. 796 (1891) (finding that the predecessor to section 959 is applicable to a claim arising from the operations of a predecessor receiver).


finding that the predecessor to section 959 is applicable to a claim arising from the operations of a predecessor receiver


Context: There may have been many reasons, some potentially bearing on the disposition of Rosado's application, as to why Dr. Spillman may have reported that she could not make these determinations. The ALJ, however, made no effort to determine what the reasons were and how otherwise to obtain that vital information.

"The duty of the ALJ to develop the record is particularly important when it comes to obtaining information from a claimant's treating physician."

See Devora v. Barnhart, 205 F.Supp.2d 164, 172-73 (S.D.N.Y.2002) (“The duty of the ALJ to develop the record is particularly important when it comes to obtaining information from a claimant’s treating physician.”); see also Rosa, 168 F.3d at 79-80 (stating that the ALJ may not rely on sparse notes nor conclusory assessments from the treating physician).


Context: The mere fact that the sentenced offense is not technically a sex offense "does not make the imposition of the special condition[s] inconsistent with the [Sentencing Guidelines'] policy statement." The mere fact that Dr. Miles has no history of sex offense convictions is not dispositive as to whether the sentencing court abused its discretion.

See United States v. Ybarra, 289 Fed.Appx. 726, 732 (5th Cir.2008) (unpublished) (noting that § 3583(d) “does not expressly prohibit the imposition of sex offender registration for offenders with no history of sex offense convictions”); United States v. Jimenez, 275 Fed.Appx. 433, 442 (5th Cir.2008) (unpublished) (leaving open the possibility for imposing sex offender treatment and registration conditions); see also United States v. Genovese, 311 Fed.Appx. 465 (2d Cir.2009) (unpublished) (affirming imposition of sex offender registration requirements in light of the defendant’s history and characteristics); United States v. Prochner, 417 F.3d 54, 63-64 (5th Cir.2005) (affirming sex offender evaluation and treatment conditions where the defendant’s journal entries and mental health evaluations supported sentencing judge’s belief that the defendant, who had no history of sex offenses, might pose a threat to children).

affirming imposition of sex offender registration requirements in light of the defendant's history and characteristics


affirming sex offender evaluation and treatment conditions where the defendant's journal entries and mental health evaluations supported sentencing judge's belief that the defendant, who had no history of sex offenses, might pose a threat to children


Context: . In the instant case, notwithstanding that the challenged AFP procedures were revised within three months after the filing of the pro se complaint, Domegan does not contend that an informal alteration in the parties' legal relationship was occasioned by the litigation.

"We ... consider the chronological sequence of events to be an important, although clearly not definitive factor, in determining whether or not defendant can be reasonably inferred to have guided his actions in response to plaintiffs lawsuit."

See Nadeau, 581 F.2d at 281 (“We ... consider the chronological sequence of events to be an important, although clearly not definitive factor, in determining whether or not defendant can be reasonably inferred to have guided his actions in response to plaintiffs lawsuit."); see also Langton, 928 F.2d at 1225 (“‘the mere existence of a temporal coincidence ... cannot alone suffice’ to engage the gears of the catalyst test.”) (quoting Martinez v. Rhode Island Housing & Mortgage Finance Corp., 628 F.Supp. 996, 1001 (D.R.I.1986)).

"'the mere existence of a temporal coincidence ... cannot alone suffice' to engage the gears of the catalyst test."


Context: The trial court, however, did not consider whether Nikzad's disclaimer of ownership itself may have been tainted by his ineffective consent to the police interview.

if defendant's arrest were illegal, his subsequent denial of ownership of luggage would have been inadmissible

See United States v. Jackson, 544 F.2d 407, 410 (9th Cir.1976) (if defendant’s arrest were illegal, his subsequent denial of ownership of luggage would have been inadmissible).

finding that defendant's disclaimer was not caused by illegal police action

Cf. United States v. Canady, 615 F.2d at 697 n. 3 (finding that defendant’s disclaimer was not caused by illegal police action); United States v. Anderson, 500 F.2d 1311, 1318 (5th Cir.1974) (same).


Context: If Fullerton had been convicted on the murder counts after a full trial, there would be no question that the jury's factual finding that he killed intentionally would satisfy the full-and-fair-litigation prong of the test for issue preclusion. Texas law collaterally estops an insured who has suffered a conviction for murder before a jury from arguing in a subsequent coverage dispute that the killing was not willful.

"Because of the existence of a higher standard of proof and greater procedural protection in a criminal prosecution, a conviction is conclusive as to an issue arising against the criminal defendant in a subsequent civil action."

See also United States v. Thomas, 709 F.2d 968, 972 (5th Cir.1983) (“Because of the existence of a higher standard of proof and greater procedural protection in a criminal prosecution, a conviction is conclusive as to an issue arising against the criminal defendant in a subsequent civil action.”).

Francis v. Marshall, 841 S.W.2d 51, 54 (Tex.App.— Houston 1992) (imposing sanctions for frivolous litigation on an insured who sought to recover benefits after a murder conviction).


Context: Plaintiff attempts to avoid making this showing by asserting that the violation of his constitutional rights is alone sufficient to prove irreparable harm and the inadequacy of a remedy at law. This statement is overbroad in that it must be tempered by the general rule that monetary injury is not a sufficient basis for injunctive relief.

"Constitutional harm is not necessarily synonymous with the irreparable harm necessary for issuance of a preliminary injunction."

See Back v. Carter, 933 F.Supp. 738, 754 (N.D.Ind.1996) (“When violations of constitutional rights are alleged, further showing of irreparable injury may not be required if what is at stake is not monetary damages”) (emphasis added); Milwaukee County Pavers Ass’n v. Fiedler, 707 F.Supp. 1016, 1031-32 (W.D.Wis.1989) (“Where violations of constitutional rights are alleged, further showing of irreparable injury may not be required if more than money is at stake”) (emphasis added); Kennedy-Kartheiser v. Board of Educ. of City of Chicago, 1987 WL 17164, at *1 (N.D.Ill. Sept. 11, 1987); see also Hohe v. Casey, 868 F.2d 69, 73 (3d Cir.1989) (“Constitutional harm is not necessarily synonymous with the irreparable harm necessary for issuance of a preliminary injunction.”).

"When violations of constitutional rights are alleged, further showing of irreparable injury may not be required if what is at stake is not monetary damages"


"Where violations of constitutional rights are alleged, further showing of irreparable injury may not be required if more than money is at stake"


Context: Pis.' Post-Trial Br. at 58-59. The court, however, does not have jurisdiction to award relief for future infringements.

"[R]elief for future infringements is beyond the power of the court by declaratory judgment or otherwise."

De Graffenried v. United States, 228 Ct.Cl. 780, 784 (1981) (“[R]elief for future infringements is beyond the power of the court by declaratory judgment or otherwise.”); see also Motorola, 729 F.2d at 768 n,3 (“[I]njunctive relief under 35 U.S.C. § 283 is not available to a patent owner in a [Section] 1498 action.”) (citations omitted).

"[I]njunctive relief under 35 U.S.C. SS 283 is not available to a patent owner in a [Section] 1498 action."


Context: Plaintiffs have simply not alleged enough context specific details and facts to plausibly support a disparate impact claim based on these vague facts. Furthermore, there is no allegation that these remarks were made by decisionmakers or that they are contemporaneous in time as to the underlying action.

" '[Sjstray workplace remarks,' as well as statements made either by nondecisionmakers or by decisionmakers not involved in the decisional process, normally are insufficient, standing alone, to establish either pretext or the requisite discriminatory animus."

See Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir.2002) (“ ‘[Sjstray workplace remarks,’ as well as statements made either by nondecisionmakers or by decisionmakers not involved in the decisional process, normally are insufficient, standing alone, to establish either pretext or the requisite discriminatory animus.”); see also Lehman v. Prudential Ins. Co. of Am., 74 F.3d 323, 329 (1st Cir.1996) (“Isolated, ambiguous remarks are insufficient, by themselves, to prove discriminatory intent.”); Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir.1992) (“Stray remarks by non-decision-makers or by decisionmakers unrelated to the decision process are rarely given great weight....”).

"Isolated, ambiguous remarks are insufficient, by themselves, to prove discriminatory intent."


"Stray remarks by non-decision-makers or by decisionmakers unrelated to the decision process are rarely given great weight...."


Context: It is clear that transactions whose sole function is to produce tax deductions are substantive shams, regardless of the motive of the taxpayer.

where "there is a ... transaction ... encouraged by business or regulatory realities, ... imbued with tax-independent considerations, and ... not shaped solely by tax-avoidance features," the transaction is not a sham

See Mahoney, 808 F.2d at 1220 (inquiry is whether transaction has any practical economic effects beyond the creation of tax benefits); Boynton, 649 F.2d at 1172 (transactions that have no economic effect other than creation of tax losses are shams); Tolwinsky v. Commissioner, 86 T.C. 1009, 1037 (1986) (“[wjhere transactions serve no ‘purpose, substance, or utility apart from their anticipated tax consequences’ they are disregarded for tax purposes”); Julien v. Commissioner, 82 T.C. 492 (1984) (interest expenses incurred in silver straddles disallowed under I.R.C. § 162(a) because transactions served no economic purpose beyond generating interest deductions); cf. Frank Lyon Co. v. United States, 435 U.S. 561, 583-84, 98 S.Ct. 1291, 1303-04, 55 L.Ed.2d 550 (1978) (where “there is a ... transaction ... encouraged by business or regulatory realities, ... imbued with tax-independent considerations, and ... not shaped solely by tax-avoidance features,” the transaction is not a sham).


transactions that have no economic effect other than creation of tax losses are shams


"[wjhere transactions serve no 'purpose, substance, or utility apart from their anticipated tax consequences' they are disregarded for tax purposes"


interest expenses incurred in silver straddles disallowed under I.R.C. SS 162(a) because transactions served no economic purpose beyond generating interest deductions


Context: Departures pursuant to Section 5K2.0 do not hinge upon a Government's motion in support thereof.

holding that district court had authority to grant Section 5K2.0 downward departure despite Government's opposition

See, e.g., Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Dominguez, 296 F.3d 192, 195 (3d Cir.2002) (holding that district court had authority to grant Section 5K2.0 downward departure despite Government’s opposition); see also United States v. Vitale, 159 F.3d 810, 813 (3d Cir.1998) (noting that district court granted defendant’s § 5K2.0 departure, without mention of Government support or opposition thereto).

noting that district court granted defendant's SS 5K2.0 departure, without mention of Government support or opposition thereto


Context: The Fourth Amendment prohibits "unreasonable searches and seizures." Even a search conducted pursuant to a warrant may be "unreasonable" given the manner in which the search has been conducted.

"Excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful."

See, e.g., United States v. Ramirez, 523 U.S. 65, 71, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998) (“Excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful.”); cf. United States v. Young, 877 F.2d 1099, 1105 (1st Cir.1989) (“[Nothing] forbids continuing a search at night, at least when doing so is reasonable.”).

"[Nothing] forbids continuing a search at night, at least when doing so is reasonable."


Context: Yet, just as it would be ridiculous to presume that title clearing litigation might take 21 years to complete, it would be ridiculous to presume that it might take Calvert County 21 years to act on appellant's application for permits. Indeed, a number of cases have involved enforcement of land sales contracts that condition settlement upon rezoning or obtaining requisite permits, yet, in none of these cases was the rule against perpetu-ities even raised.

clause providing for settlement " 'on or before (90) days from date hereof or as soon thereafter as report of title can be obtained' " was not so indefinite as to destroy enforceability of contract

See also Paape v. Grimes, 256 Md. 490, 497, 260 A.2d 644 (1970) (clause providing for settlement “ ‘on or before (90) days from date hereof or as soon thereafter as report of title can be obtained’ ” was not so indefinite as to destroy enforceability of contract).

See, e.g., Michael v. Towers, 253 Md. 114, 119, 251 A.2d 878 (1969) (contract contingent upon rezoning); Sears v. Polan’s, 250 Md. 525, 243 A.2d 602 (1968) (contract provided that settlement would be within 30 days after final determination of rezoning application by zoning authority); Scheffres v. Columbia Realty Co., 244 Md. 270, 275-76, 286, 223 A.2d 619 (1966) (settlement contingent upon rezoning and approval from Board of Education to trade certain acreage); Cadem v. Nanna, 243 Md. 536, 543-44, 221 A.2d 703 (1966) (contract contingent upon rezoning).


settlement contingent upon rezoning and approval from Board of Education to trade certain acreage


Context: Because Lurie's petition, filed in October 1998, postdates the enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L.

"Because [petitioner] filed his petition in December 1997, [his] case is governed by the statute as amended by AEDPA."

See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1518, 146 L.Ed.2d 389 (2000) (“Because [petitioner] filed his petition in December 1997, [his] case is governed by the statute as amended by AEDPA.”); cf. Lindh v. Murphy, 521 U.S. 320, 322-23, 117 S.Ct. 2059, 2061, 138 L.Ed.2d 481 (1997); Tankleff v. Senkowski, 135 F.3d 235, 242 (2d Cir.1998) (hold ing that pre-AEDPA standards govern petitions filed prior to AEDPA’s enactment).

hold ing that pre-AEDPA standards govern petitions filed prior to AEDPA's enactment


Context: Eastern conceded at oral argument, however, that our recent decision in West Virginia CWP Fund v. Bender forecloses that contention. Our precedent also readily dispatches Eastern's complaints about the ALJ's consideration of the preamble to the 2000 Final Rule in evaluating the opinions of Drs. Rosenberg and Renn.

explaining that ALJ "may consider" regulatory preamble "in assessing medical expert opinions"

See Harman Mining Co. v. Dir., OWCP, 678 F.3d 305, 314-16 (4th Cir.2012) (concluding that ALJ did not err in invoking regulatory preamble in assessing medical expert’s credibility); see also Westmoreland Coal Co. v. Cochran, 718 F.3d 319, 323 (4th Cir.2013) (explaining that ALJ "may consider” regulatory preamble "in assessing medical expert opinions”).

concluding that ALJ did not err in invoking regulatory preamble in assessing medical expert's credibility


Context: Furthermore, we have recognized the unreliability of jailhouse informants -- who are themselves incarcerated criminals with significant motivation to garner favor -- and on occasion have granted habeas or other relief where a defendant was convicted as a result of fabricated or potentially fabricated testimony.

reversing the district court's denial of habeas relief where a 1985 California jailhouse informant later confessed to perjury and the alteration of evidence

See, e.g., Hall, 343 F.3d at 985 (reversing the district court’s denial of habeas relief where a 1985 California jailhouse informant later confessed to perjury and the alteration of evidence); Jackson v. Brown, 513 F.3d 1057, 1060-61 (9th Cir.2008) (affirming the district court’s partial grant of habeas relief where a 1980s California jailhouse informant had not disclosed the full benefit he received in exchange for his testimony); Goldstein v. City of Long Beach, 481 F.3d 1170, 1171 (9th Cir.2007), reversed, on other grounds by Van de Kamp v. Goldstein, — U.S. -, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009) (noting that Goldstein was granted habeas relief when it was revealed that a 1980s California jailhouse informant had not disclosed that his sentence was reduced in return for testimony) ; Reynoso v. Giurbino, 462 F.3d 1099, 1102 (9th Cir.2006) (granting habeas relief where counsel was ineffective in failing to cross-examine the 1990 California jailhouse informant about his motivation for testifying and the informant’s testimony was suspiciously similar to a recent television broadcast about the case); Bernal-Obeso, 989 F.2d at 333 (vacating a defendant’s conviction on direct review and remanding the case back to the district court for an evidentiary hearing to determine whether the government informant had lied about prior convictions); but see Hovey v. Ayers, 458 F.3d 892, 898 (9th Cir.2006) (denying habeas relief where failure to impeach a 1980 California jailhouse informant was not ineffective assistance of counsel); Morales v. Ornoski, 439 F.3d 529, 534 (9th Cir.2006) (denying habeas relief where petitioner’s claim that prosecution knowingly presented a 1980s California jailhouse informant’s false testimony was harmless).


denying habeas relief where petitioner's claim that prosecution knowingly presented a 1980s California jailhouse informant's false testimony was harmless


affirming the district court's partial grant of habeas relief where a 1980s California jailhouse informant had not disclosed the full benefit he received in exchange for his testimony


noting that Goldstein was granted habeas relief when it was revealed that a 1980s California jailhouse informant had not disclosed that his sentence was reduced in return for testimony


granting habeas relief where counsel was ineffective in failing to cross-examine the 1990 California jailhouse informant about his motivation for testifying and the informant's testimony was suspiciously similar to a recent television broadcast about the case


vacating a defendant's conviction on direct review and remanding the case back to the district court for an evidentiary hearing to determine whether the government informant had lied about prior convictions


Context: In addition to making it difficult to ascertain the factual allegations that correspond to each claim, shotgun pleadings also fail to specify which defendant is responsible for each act alleged.

dismissing shotgun complaint that made "factual allegations that could not possibly be material to any of the causes of action."

Beckwith, 146 Fed.Appx. at 373 (“It is virtually impossible to ascertain what factual allegations correspond with each claim and which claim is directed at which defendant.”); see also Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir.1991) (dismissing shotgun complaint that made “factual allegations that could not possibly be material to any of the causes of action.”).

"It is virtually impossible to ascertain what factual allegations correspond with each claim and which claim is directed at which defendant."


Context: The factfinder must assess the totality of the circumstances, with no single factor necessarily attaining talismanic importance. Given a minimally sufficient evidentiary predicate, determining the nature of the relationship between the hirer and the hi-ree is precisely the sort of "mixed" fact-law question which falls peculiarly within the competence of the jury qua factfinder.

See, e.g., Wilson v. Hooter Corp., 475 F.2d 497, 501 (1st Cir.) (question of which employer exercised right to control “borrowed” servant susceptible to resolution by jury), cert. denied, 414 U.S. 865, 94 S.Ct. 116, 38 L.Ed.2d 85 (1973); cf. Swift v. United States, 866 F.2d 507, 510-11 (1st Cir.1989) (evaluative applications of legal standards to circumstances of particular cases are ordinarily for the factfinder).

question of which employer exercised right to control "borrowed" servant susceptible to resolution by jury


Context: Finally, the fact that his income substantially exceeds hers does not justify permanent periodic alimony.

evidence that his income was more than wife's during her previous employment did not support award of permanent periodic alimony where wife was 35 years old, in good health, and had some job skills that could eventually enable her to become self-supporting

Rojas v. Rojas, 656 So.2d 563 (Fla. 3d DCA 1995) (evidence that his income was more than wife’s during her previous employment did not support award of permanent periodic alimony where wife was 35 years old, in good health, and had some job skills that could eventually enable her to become self-supporting); Hann v. Hann, 629 So.2d 918 (Fla. 2d DCA 1994) (fact that his income was more than wife’s does not justify award of permanent alimony to her where she was 40, had no health disabilities, and had education and experience to become self-supporting); Fulks v. Fulks, 558 So.2d 205 (Fla. 2d DCA 1990) (no justification for permanent periodic alimony where he had more income than wife who was 40, in good health, and had 14 years work experience); see also Wismar v. Wismar, 522 So.2d 552 (Fla. 5th DCA 1988) (award of permanent alimony in' this case, without any basis or justification in the record, except as a means to provide the wife with a higher standard of living at the husband’s expense, constitutes an abuse of discretion).

award of permanent alimony in' this case, without any basis or justification in the record, except as a means to provide the wife with a higher standard of living at the husband's expense, constitutes an abuse of discretion


fact that his income was more than wife's does not justify award of permanent alimony to her where she was 40, had no health disabilities, and had education and experience to become self-supporting


no justification for permanent periodic alimony where he had more income than wife who was 40, in good health, and had 14 years work experience


Context: . Young's statement that Alexander "[has] a gun on him now" is not rendered inadmissible simply because it was made in response to the dispatcher's question.

fact that declarant answered dispatcher's questions, rather than giving spontaneous narrative, did not disprove excitement

See Joy, 192 F.3d at 767 (fact that declarant answered dispatcher’s questions, rather than giving spontaneous narrative, did not disprove excitement); see also United States v. Glenn, 473 F.2d 191, 194 (D.C.Cir.1972) ("Declarations relating to the circumstances of a violent crime, made by the victim shortly after its occurrence ... may be admissible although made in response to an inquiry.").


Context: Once a witness voluntarily has revealed an incriminating fact, "the privilege cannot be invoked to avoid disclosure of the details."

witness's disclosures in entering guilty plea at Rule 11 hearing do not constitute waiver of privilege at co-defendant's trial

United States v. Cain, 544 F.2d 1113, 1117 (1st Cir.1976) (co-defendant’s submission to deposition in unrelated criminal proceeding not waiver of Fifth Amendment in proceeding in which co-defendant called as witness); see also Johnson, 488 F.2d at 1210-11 (witness’s disclosures in entering guilty plea at Rule 11 hearing do not constitute waiver of privilege at co-defendant’s trial); Kirane v. City of Lowell, 622 F.Supp. 262, 265 (D.Mass.1985) (“[A] person who waives his privilege as to the one trial [is not] estopped from asserting the privilege as to the same matter in a subsequent trial or proceeding.”); 8 J. Wigmore, Evidence § 2276, at 470-72 (McNaughton rev. 1961) (“The waiver involved is limited to the particular proceeding in which the witness volunteers the testimony or the accused takes the stand_ Nor is his testimony at a first trial a waiver for a later trial.”) (emphasis in original). Therefore, Gary’s contention that Hopkins waived his privilege in the second trial by testifying in the first trial is misplaced.

co-defendant's submission to deposition in unrelated criminal proceeding not waiver of Fifth Amendment in proceeding in which co-defendant called as witness


"[A] person who waives his privilege as to the one trial [is not] estopped from asserting the privilege as to the same matter in a subsequent trial or proceeding."


Context: HDC commissioners do not enjoy the insulation from political influence that comes from lifetime or long-term tenure. Once appointed, a commissioner is entitled to serve, by law, for a term of either five years (regular members) or three years (alternates).

assuming, in part because the health commissioner was entitled to serve a finite term, "that the commissioner is not removable at will [by the governor] and that such insulation from political influence weighs in favor of a grant of absolute immunity"

See id. § 12-4(C). That said, there is no indication that HDC commissioners can be removed at will by members of the Board of Warden and Burgess-es, and the fact that commissioners are entitled to serve at least three or five years is somewhat suggestive of the fact that they are not removable at will. See DiBlasio v. Novello, 344 F.3d 292, 298 (2d Cir. 2003) (assuming, in part because the health commissioner was entitled to serve a finite term, “that the commissioner is not removable at will [by the governor] and that such insulation from political influence weighs in favor of a grant of absolute immunity”); see also Tulloch, 50 F.3d at 117 (Department of Correctional Services’ “control over the hearing officers’ terms of employment” undermines the officers’ insulation from political influence).

Department of Correctional Services' "control over the hearing officers' terms of employment" undermines the officers' insulation from political influence


Context: The district court properly dismissed the action because Davis clearly conceded that he failed to exhaust prison grievance procedures prior to filing suit.

See Wyatt, 315 F.3d at 1120 (“A prisoner’s [clear] concession to nonexhaustion is a valid ground for dismissal .... ”); see also Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (requiring exhaustion of administrative remedies regardless of the type of relief sought); McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir.2002) (per curiam) (requiring exhaustion of administrative remedies pri- or to filing suit).

"A prisoner's [clear] concession to nonexhaustion is a valid ground for dismissal .... "


requiring exhaustion of administrative remedies pri- or to filing suit


Context: Under such circumstances, even though economic harm is not an element of the Florida common law claim for restitution, it may be required for superiority under the Federal Rules of Civil Procedure. This is especially likely when, as in the present suit, the defendants' potential liability would be enormous and completely out of proportion to any harm suffered by the plaintiff.

But see Fabricant v. Sears Roebuck, 202 F.R.D. 310, 318 (S.D.Fla.2001) (certifying class on facts almost identical to the present suit).

noting that class treatment lacks superiority when damages "shock the conscience"

See Kline v. Coldwell, Banker & Co., 508 F.2d 226, 234-35 (9th Cir.1974) (noting that class treatment lacks superiority when damages "shock the conscience”); Wilcox v. Commerce Bank of Kansas City, 474 F.2d 336, 341-47 (10th Cir.1973) (holding district court did not abuse discretion when it denied class certification for TILA violations case where class members were not harmed and aggregate of statutory damages would be extremely large); In re Trans Union Corp. Privacy Litig., 211 F.R.D. 328, 350-51 (N.D.Ill.2002) (finding class action lacked superiority in part because of due process concerns where statutory damages would be "grossly disproportionate” to any actual damage suffered by plaintiffs); Ratner v. Chemical Bank New York Trust Co., 54 F.R.D. 412, 416 (S.D.N.Y.1972) (finding class certification lacked superiority where violation was technical and aggregation of statutory damages under TILA would be financially devastating for defendant).


holding district court did not abuse discretion when it denied class certification for TILA violations case where class members were not harmed and aggregate of statutory damages would be extremely large


finding class action lacked superiority in part because of due process concerns where statutory damages would be "grossly disproportionate" to any actual damage suffered by plaintiffs


finding class certification lacked superiority where violation was technical and aggregation of statutory damages under TILA would be financially devastating for defendant


Context: Although we have located no cases exactly on point, we do note that our conclusion is consistent with the conclusions reached in several similar cases.

See Tschida v. Berdusco, 462 N.W.2d 410 (Minn. Ct. App. 1990) (recognizing that legal owner and keeper/owner both could be liable under Minnesota dog-bite statute but dismissing strict-liability claim of veterinarian's employee because there was no negligence by the legal owner); Wilcoxen v. Paige, 528 N.E.2d 1104, 1106 (Ill. Ct. App. 1988) (owner and operator of dog boarding and grooming business barred from bringing action against dog's legal owner because plaintiff was an "owner" under Illinois dog-bite statute and therefore could not recover given her own failure to control dog); Wendland v. Akers, 356 So.2d 368, 371 (Fla. Dist. Ct. App. 1978) (veterinarian assistant's strict-liability claim against dog's legal owners dismissed because of absence of active negligence by legal owners); see also Collins v. Kenealy, 492 N.W.2d 679, 680-682 (Iowa 1992) (refusing to apply Tschida, Wilcoxen and Wendland because groomer not an "owner" under state strict-liability dog-bite statute that "has always placed responsibility only on the legal owner" (emphasis added)).


owner and operator of dog boarding and grooming business barred from bringing action against dog's legal owner because plaintiff was an "owner" under Illinois dog-bite statute and therefore could not recover given her own failure to control dog


veterinarian assistant's strict-liability claim against dog's legal owners dismissed because of absence of active negligence by legal owners


Context: [P 20] Some courts have held, however, that the automatic stay under 11 U.S.C. SS 362 does not prevent the filing of a renewal affidavit.

But see In re Lobherr, 282 B.R. at 917 (filing of renewal application under California law violated automatic stay).

See, e.g., In re Smith, 209 Ariz. 343, 101 P.3d 637, 639 (2004) (holding ministerial action of filing renewal affidavit not prohibited by automatic bankruptcy stay); O’Lane v. Spinney, 110 Nev. 496, 874 P.2d 754, 755-56 (1994) (rejecting argument that automatic stay prevented filing a renewal affidavit); Barber v. Emporium P’ship, 800 P.2d 795, 797 (Utah 1990) (stating action to renew a judgment does not violate automatic stay provisions because a renewal is not an attempt to enforce, collect, or expand the original judgment); In re Morton, 866 F.2d 561, 564 (2d Cir.1989) (concluding automatic stay does not eliminate state-law requirement of extending a judgment lien).


rejecting argument that automatic stay prevented filing a renewal affidavit


stating action to renew a judgment does not violate automatic stay provisions because a renewal is not an attempt to enforce, collect, or expand the original judgment


concluding automatic stay does not eliminate state-law requirement of extending a judgment lien


Context: In the School Committee case, the parents were statutorily entitled to the cost of the special education their child never received, and for which they expended their own money. Unlike Hubbard, they, like the State of Massachusetts in Bowen, met all the pre-existing legal obligations to receive a cash entitlement from the government, at the time they were denied it.

Cf. United States v. Burke, — U.S. —, 112 S.Ct. 1867, 119 L.Ed.2d 34 (finding that back pay was equitable under the Internal Revenue Code but nevertheless compensatory).

noting that the Education for the Handicapped Act, 20 U.S.C. SS 1401 et seq., provides for public payment of private school expenses when an appropriate public education cannot be provided

See id. at 369, 105 S.Ct. at 2002 (noting that the Education for the Handicapped Act, 20 U.S.C. § 1401 et seq., provides for public payment of private school expenses when an appropriate public education cannot be provided). At any rate, the Court’s treatment of the reimbursement in School Committee as restitutionary was in a completely different context than § 702 and required no decision as to whether the relief was specific.


Context: The Application Note gives the examples of an attorney serving as a guardian who embezzles funds from a client and a bank executive's fraudulent loan scheme. In determining whether an enhancement for an abuse of a position of trust is appropriate, we look "to the nature of a defendant's relationship to the victims and to the responsibility he was given."

Strang, 80 F.3d at 1220 (enhancement appropriate where defendants befriended victims in order to persuade them to invest in phony scheme); see also Sinclair, 74 F.3d at 763 (enhancement appropriate where assistant vice president of bank proposed to split commissions from bank loan insurance policies with insurance broker).


Context: First, as earlier explained, the Secretary should indicate in her administrative summary which sources she regards as sufficiently credible that she relies on them; and she should explain to which part of section 1189(a)(1)(B) the information she relies on relates. Second, although the Secretary must give the PMOI an opportunity to rebut the unclassified material on which she relies, AEDPA does not allow access to the classified record as it makes clear that classified material "shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review." 8 U.S.C. SS 1189(a)(4)(B)(iv)(II); see id. SS 1189(c)(2) (providing for court's "ex parte and in camera review" of "classified information used in making the designation"). Our cases under AEDPA have suggested that this procedure can satisfy due process requirements, at least where the Secretary has not relied critically on classified material and the unclassified material provided to the FTO is sufficient to justify the designation.

"We already decided in [NCRI I ] that due process required the disclosure of only the unclassified portions of the administrative record."

See NCRI II, 373 F.3d at 159-60; PMOI II, 327 F.3d at 1243 (“We already decided in [NCRI I ] that due process required the disclosure of only the unclassified portions of the administrative record.”) (emphasis in original); NCRI I, 251 F.3d at 202, 208-09 (“We acknowledge that in reviewing the whole record, we have included the classified material, but] ... we will not and cannot disclose the contents of the record,” which “is within the privilege and prerogative of the executive”); see also Jifry v. Fed. Aviation Admin., 370 F.3d 1174, 1182, 1184 (D.C.Cir. 2004) (pilot denied licensure has no right to access to classified record because “[t]he due process protections afforded ... parallel those provided under similar circumstances in [NCRI I and PMOI II], and are sufficient to satisfy our case law”); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 164 (D.C.Cir.2003) (“HLF’s complaint, like that of the Designated Foreign Terrorists Organizations in [NCRI I and PMOI II ], that due process prevents its designation [under a different law] based upon classified information to which it has not had access is of no avail.”). We note, however, that none of the AED-PA cases decides whether an administrative decision relying critically on undisclosed classified material would comport with due process because in none was the classified record essential to uphold an FTO designation.

pilot denied licensure has no right to access to classified record because "[t]he due process protections afforded ... parallel those provided under similar circumstances in [NCRI I and PMOI II], and are sufficient to satisfy our case law"


"HLF's complaint, like that of the Designated Foreign Terrorists Organizations in [NCRI I and PMOI II ], that due process prevents its designation [under a different law] based upon classified information to which it has not had access is of no avail."


"We acknowledge that in reviewing the whole record, we have included the classified material, but] ... we will not and cannot disclose the contents of the record," which "is within the privilege and prerogative of the executive"


Context: One statutory exclusion from course and scope is implicated in this case: "transportation to and from the place of employment." Id. SS 401.011(12)(A). This exclusion is commonly referred to as the "coming and going" exclusion. If .an employee's ultimate destinations are home and work, despite any intermediate stops in-between, the "coming and going" exclusion merits analysis.

"The 'coming and going' rule developed ... specifically for travel between home and work."

Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 246 (Tex.2010) (“The ‘coming and going’ rule developed ... specifically for travel between home and work.”); see Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 727-29 (Tex.App.-Austin 2011, pet. denied) (analyzing the “coming and going” exclusion because the travel was between work and home even though the injury occurred while the employee was first on his way to pick up a co-worker and then to a mandatory work conference in another city).

analyzing the "coming and going" exclusion because the travel was between work and home even though the injury occurred while the employee was first on his way to pick up a co-worker and then to a mandatory work conference in another city


Context: An employee may establish a causal connection "by showing that the employer had knowledge of the employee's protected activity, and that the [retaliatory] action took place shortly after that activity." Courts in this District have held that a gap of even two months is too remote to infer any casual, connection.

See Baker v. Potter, 294 F.Supp.2d 33, 41 (D.D.C.2003) (two-month gap between protected activity and adverse employment action insufficient to demonstrate temporal proximity to establish a casual connection); see also, Mayers v. Laborers’ Health & Safety Fund of North America, 478 F.3d 364, 369 (D.C.Cir.2007) (Eight or nine month gap “far too long” to establish causal link); Nagpal v. Holder, 750 F.Supp.2d 20 (D.D.C.2010) (“four month gap between protected activity and the adverse employment action lacks the temporal proximity necessary to establish a casual connection” in this Circuit).

Eight or nine month gap "far too long" to establish causal link


"four month gap between protected activity and the adverse employment action lacks the temporal proximity necessary to establish a casual connection" in this Circuit