Context: That plaintiff may disagree with her supervision's decisions regarding her applications for promotions is irrelevant. Such business decisions are solely within an employer's discretion.

"[ejvidence that an employer made a poor business judgment generally is insufficient to establish a question of fact as to the credibility of the employer's reasons"

Visco v. Community Health Plan, 957 F.Supp. 381, 388 (N.D.N.Y.1997) (“[a]n employer may exercise business judgment in making personnel decisions as long as they are not discriminatory”); see also Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir.1988) (“[ejvidence that an employer made a poor business judgment generally is insufficient to establish a question of fact as to the credibility of the employer’s reasons”); Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir.1991) (“[cjourts may not sit as super personnel departments, assessing the merits — or even the rationality — of employers’ non-discriminatory business decisions”), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992).

"[a]n employer may exercise business judgment in making personnel decisions as long as they are not discriminatory"


"[cjourts may not sit as super personnel departments, assessing the merits -- or even the rationality -- of employers' non-discriminatory business decisions"


Context: For all of these reasons, the Government's motion for summary judgment must very largely be granted. However, the motion may not be granted in full because the Court, upon its in camera review of the disputed documents, has discovered a few minor instances where disclosure is required. As discussed above, under the exception for official disclosure, the Government waives the right to withhold information if: (1) "the information requested [is] as specific as the information previously released"; (2) "the information requested [matches] the information previously disclosed"; and (3) "the information requested [was] already ... made public through an official and documented disclosure."

Wilson v. McConnell, 501 F.Supp.2d 545, 559 (S.D.N.Y.2007) (holding that a Congressional publication of classified CIA information does not bind the CIA).

"[W]e do not deem 'official' a disclosure made by someone other than the agency from which the information is being sought"

See also Frugone v. CIA, 169 F.3d 772, 774 (D.C.Cir.1999) (“[W]e do not deem ‘official’ a disclosure made by someone other than the agency from which the information is being sought”).


Context: The Eleventh Circuit Court of Appeals has found that Rule 16's good-cause standard governs a party's ability to amend his complaint after the district court has entered a scheduling order.

describing "two-step analysis" required under Rules 15 and 16 when a motion to amend the pleadings and join additional parties is filed after the scheduling order deadline

Id. at 1419 (“[Bjecause Sosa’s motion to amend was filed after the scheduling order’s deadline, she must first demonstrate good cause under Rule 16(b) before we will consider whether amendment is proper under Rule 15(a).”); see also Dilmar Oil Co. v. Federated Mut. Ins. Co., 986 F.Supp. 959, 980 (D.S.C.1997) (describing “two-step analysis” required under Rules 15 and 16 when a motion to amend the pleadings and join additional parties is filed after the scheduling order deadline).

"[Wjhen a motion to amend is filed after a scheduling order deadline, Rule 16 is the proper guide for determining whether a party's delay may be excused."

Sosa v. Airprint Sys., 133 F.3d 1417, 1418 n. 2 (1998) (“[Wjhen a motion to amend is filed after a scheduling order deadline, Rule 16 is the proper guide for determining whether a party’s delay may be excused.”). It is only after the court addresses whether the proposed amendment may be granted under Rule 16 that the court is to determine whether it is proper under Rule 15.


Context: Evaluating this statute is a daunting task, made all the more complicated in this case as the parties have raised a myriad of issues ranging from the legal status of the financing agreements to the propriety of Pritzker's efforts to prime the article 1425 pump. We address these issues sequentially, for the most part subjecting the district court's determinations to plenary review.

See United States v. Gifford, 17 F.3d 462, 472 (1st Cir.1994) (holding that questions of statutory interpretation are purely legal in nature, and, thus, engender de novo review); Liberty Mut. Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750, 757 (1st Cir.1992) (same); see also Salve Regina Coll. v. Russell, 499 U.S. 225, 239-40, 111 S.Ct. 1217, 1225-26, 113 L.Ed.2d 190 (1991) (holding that “courts of appeals [must] review the state-law determinations of district courts de novo ”).

holding that "courts of appeals [must] review the state-law determinations of district courts de novo "


Context: The BIA refused to reopen Kech-ichian's case because it held that even if her son were potentially subject to persecution in Armenia, that would not entitle her to relief. This circuit has not considered a parent's claim of psychological harm based solely on a child's potential persecution, but the BIA has foreclosed such claims.

"[Allowing an applicant to obtain asylum or withholding of removal through persecution to his child would require granting relief outside the statutory ... scheme established by Congress."

In re A-K-, 24 I. & N. Dec. 275, 278 (B.I.A.2007) (“[Allowing an applicant to obtain asylum or withholding of removal through persecution to his child would require granting relief outside the statutory ... scheme established by Congress.”); see also Niang v. Gonzales, 492 F.3d 505, 513 (4th Cir.2007) (refusing to recognize a claim based on a child’s potential persecution).

refusing to recognize a claim based on a child's potential persecution


Context: Second, as the BIA reasonably determined, Zhang failed to establish a material change in country conditions, since the time of his hearing. Indeed, State Department reports in the record for 2000 (submitted with Zhang's original application) and 2010 (submitted with his motion to reopen) showed that country conditions had not materially changed.

See Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007)(“In determining whether evidence accompanying a motion to reopen demonstrates a material change in country conditions that would justify reopening, [the BIA] compare[s] the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below.”); see also Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir.2006) (per curiam) (considering whether evidence in support of reopening demonstrated a change since the hearing below).

"In determining whether evidence accompanying a motion to reopen demonstrates a material change in country conditions that would justify reopening, [the BIA] compare[s] the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below."


Context: Okeayainneh and Adentran concede we have previously held that the district court is not required to make a contemporaneous record of its ends-of-justice findings.

"Contemporaneity is not required ... and a subsequent articulation suffices."

See United States v. Clifford, 664 F.2d 1090, 1095 (8th Cir.1981) (“While a court generally should make the findings required by section 3161(h)(8)(A) at the time it grants the continuance, the Speedy Trial Act does not require the court to make a contemporaneous record.”); see also United States v. Stackhouse, 183 F.3d 900, 901 (8th Cir.1999) (per curiam) (“Contemporaneity is not required ... and a subsequent articulation suffices.”).

"While a court generally should make the findings required by section 3161(h


Context: Decisions setting aside (as constitutionally invalid) restrictions upon use of the courts, based upon the ability of a party to pay, have occurred principally in criminal cases. The principle has been applied to protect the fundamental rights of some indigents in civil cases.

See e.g. Coonce v. Coonce, 356 Mass. 690, 693-695 (proceedings in forma pauperis in divorce); Boddie v. Connecticut, 401 U. S. 371, 376-379; Morganti v. Morganti, 99 Cal. App. 2d 512, 515-516 (statute unconstitutionally denied divorce to the spouse of an incurably insane person, unless the plaintiff could prove ability to support the insane person); Harrington v. Harrington, 269 Atl. 2d (Maine) 310, 314-316 (statutory bond in repossession proceedings); Jeffreys v. Jeffreys, 58 Misc. 2d (N.Y.) 1045, 1048-1059 (costs in divorce proceedings).

Cf. State v. Sanks, 225 Ga. 88, 90 (indigent required to furnish bond as condition of presenting defense to eviction), app. dism. 401 U. S. 144, 153.


Context: Bryant's advertisements posed just such a danger. The exclusion in SS 4.11 of political advertising, and of Bryant's advertisements in particular, is therefore reasonable.

upholding regulations barring "[d]emonstrations, ... political speeches and similar activities" on military base and authorizing commander to exclude "publication [that] presents a clear danger to the loyalty, discipline, or morale of troops at [the] installation"

See id. at 831 & n. 2, 839-40, 96 S.Ct. 1211 (upholding regulations barring “[d]emonstrations, ... political speeches and similar activities” on military base and authorizing commander to exclude “publication [that] presents a clear danger to the loyalty, discipline, or morale of troops at [the] installation”); cf. Lehman, 418 U.S. at 299-300, 304, 94 S.Ct. 2714 (plurality) (transit system’s ban on “political advertising” held reasonable because political advertisements could subject riders to “blare of political propaganda” and create “lurking doubts about favoritism”).

transit system's ban on "political advertising" held reasonable because political advertisements could subject riders to "blare of political propaganda" and create "lurking doubts about favoritism"


Context: We believe that these facts, though covering a shorter period than that in Nolan, could constitute the necessary aggravating factors such that a trier of fact could (but not necessarily would) conclude that a reasonable person would find the conditions so intolerable and discriminatory as to justify resigning.

See Ford v. Alfaro, 785 F.2d 835, 841-42 (9th Cir.1986) (holding in a Fair Labor Standards Act case that a constructive discharge occurred when an employee was physically threatened on one occasion, harassed over the next two weeks, and not given sufficient work instructions to perform his job); Bailey v. Binyon, 583 F.Supp. 923, 924-25, 928-34 (N.D.Ill.1984) (denying defendant’s motion to dismiss when the plaintiff quit within hours of beginning his job, after his employer subjected him to three racial insults, did not ask plaintiff to quit, and said “You’d stay if you weren’t a sissy. If you were a man, you’d stay.”); Robson v. Eva’s Super Market, Inc., 538 F.Supp. 857, 859-60, 862 (N.D.Ohio 1982) (denying summary judgment to defendant, when the evidence showed frequent incidents of sexual harassment over a two-month period, despite the fact that the company’s president called the plaintiff to ask her to return to work); see also Goss, 747 F.2d at 888-89 (upholding finding of constructive discharge when plaintiff was subjected to four incidents of harassment over a nine-month period, including (1) a meeting in which plaintiff cried because of her superi- or’s extensive questions about her intention to have a career and a family and (2) a choice between a job transfer and resignation); cf. Wagner v. Sanders Assocs., Inc., 638 F.Supp. 742, 745 (C.D.Cal.1986) (granting summary judgment to defendant when plaintiff produced evidence that showed only that he was transferred to a new position with less responsibility, that he stated that his working conditions were satisfactory, and that he resigned in order to take a job with another employer).

upholding finding of constructive discharge when plaintiff was subjected to four incidents of harassment over a nine-month period, including (1) a meeting in which plaintiff cried because of her superi- or's extensive questions about her intention to have a career and a family and (2


granting summary judgment to defendant when plaintiff produced evidence that showed only that he was transferred to a new position with less responsibility, that he stated that his working conditions were satisfactory, and that he resigned in order to take a job with another employer


denying defendant's motion to dismiss when the plaintiff quit within hours of beginning his job, after his employer subjected him to three racial insults, did not ask plaintiff to quit, and said "You'd stay if you weren't a sissy. If you were a man, you'd stay."


denying summary judgment to defendant, when the evidence showed frequent incidents of sexual harassment over a two-month period, despite the fact that the company's president called the plaintiff to ask her to return to work


Context: We do not address Curten's argument that he timely exercised his right of rescission under the Truth in Lending Act be cause Curten did not assert a rescission claim in his complaint and did not otherwise present this argument to the district court.

"These arguments are raised for the first time on appeal, and because they were never argued before the district court, we deem them waived."

See Hillis v. Heineman, 626 F.3d 1014, 1019 (9th Cir.2010) (“These arguments are raised for the first time on appeal, and because they were never argued before the district court, we deem them waived.”); see also Baccei v. United States, 632 F.3d 1140, 1149 (9th Cir.2011) (“[This Court] will not reframe an appeal to review what would be in effect a different case than the one decided by the district court.”).

"[This Court] will not reframe an appeal to review what would be in effect a different case than the one decided by the district court."


Context: Nevertheless, defendant Waller undoubtedly felt obligated to inform the public about issues surrounding the nolle prosequi of Hobbs's case. The court can discern no principled reason why the protection afforded the defendant in Ware should not extend to defendant Waller here.

"[W]e hold that the absolute privilege which attaches to defamatory statements made by an attorney incidental to a pending legal proceeding also applies to post-litigation defamatory statements made by an attorney to the client he or she represented in such proceeding."

See Patterson I, 328 F.Supp.2d at 902 (holding that prosecutors’ defamatory statements to the press after plaintiff was pardoned were absolutely privileged); see also Golden v. Mullen, 693 N.E.2d 385, 390, 295 Ill.App.3d 865, 230 Ill.Dec. 256 (Ill.App.Ct.1997) (“[W]e hold that the absolute privilege which attaches to defamatory statements made by an attorney incidental to a pending legal proceeding also applies to post-litigation defamatory statements made by an attorney to the client he or she represented in such proceeding.”).

holding that prosecutors' defamatory statements to the press after plaintiff was pardoned were absolutely privileged


Context: It is beyond peradventure that officials who willfully, intentionally or recklessly keep an inmate in prison past the date he was ordered released are liable under section 1983 for infringing upon the inmate's personal liberty protected by the substantive due process clause of the Fourteenth Amendment.

See Johnson v. Muel ler, 415 F.2d 354, 355 (4th Cir.1969) (inmate’s allegations that superintendent of prison kept him confined past term of his sentence was actionable under section 1983); Speaks v. McGregor, 355 F.Supp. 1129, 1131-32 (W.D.Va.1973) (holding fugitive past allowable time period under state law is actionable under section 1983); see also Gay v. Wall, 761 F.2d 175, 178-79 (4th Cir.1985) (complaint alleging officials knew arrestee was innocent but detained him until the right man was found stated cause of action under section 1983).

inmate's allegations that superintendent of prison kept him confined past term of his sentence was actionable under section 1983


holding fugitive past allowable time period under state law is actionable under section 1983


Context: Substantial evidence supports the IJ's finding that Anguiano failed to show it is more likely than not that he would be tortured by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.

See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir.2010) (denying relief under CAT where only “general evidence of violence and crime” was presented); see also Dhital v. Mukasey, 532 F.3d 1044, 1051-52 (9th Cir.2008) (concluding the evidence did not indicate a particularized threat of torture to petitioner). Thus, petitioner’s claim for relief under CAT fails.

denying relief under CAT where only "general evidence of violence and crime" was presented


Context: We also will assume, again without deciding, that the judicial defendants and the administrator defendants are not immune from suit. Further, we assume, without deciding, that at least one of the plaintiffs had standing to bring this suit at the time the initial complaint was filed.

"The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)."

See Mangual v. Rotger-Sabat, 317 F.3d 45, 58 (1st Cir.2003) (standing is based on the facts as they existed at the time the complaint was filed); see also Friends of the Earth, Inc, v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 170, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).”).


Context: The Department's argument that keeping its designed sight lines clear is purely a discretionary duty, and that its immunity is therefore not waived by the Texas Tort Claims Act, is therefore not supportable.

efficient maintenance includes trimming vegetation on right-of-way so it will not impair motorists' views as they approach intersections

See Hamric, 718 S.W.2d at 919-20 (efficient maintenance includes trimming vegetation on right-of-way so it will not impair motorists’ views as they approach intersections); see also Olson, 980 S.W.2d at 896 (untrimmed shrubbery invading right-of-way and partially obscuring line of sight from stop position).


Context: First, they suggest that they can respond to this evidence simply by claiming that a jury might choose to disregard it or might find it unpersuasive. That is not true. [Ijnstead, the nonmoving party must present affirmative evidence to defeat a properly supported motion for summary judgment."); Curl v. Int'l Bus. Machs.

"[T]he party opposing summary judgment must be able to point to some facts which may or will entitle him to judgment, or refute the proof of the moving party in some material portion, and ... the opposing party may not merely recite the incantation, 'Credibility,' and have a trial on the hope that a jury may disbelieve factually uncontested proof."

Corp., 517 F.2d 212, 214 (5th Cir.1975) (“[T]he party opposing summary judgment must be able to point to some facts which may or will entitle him to judgment, or refute the proof of the moving party in some material portion, and ... the opposing party may not merely recite the incantation, ‘Credibility,’ and have a trial on the hope that a jury may disbelieve factually uncontested proof.”) (quotation omitted); Eaton v. Nat’l Broad. Co., 972 F.Supp. 1019, 1024 (E.D.Va.1997) (“[A] copyright plaintiff cannot base her opposition to summary judgment entirely on the hope that a fact finder will disbelieve the persons who have submitted affidavits on issues of access.”); cf. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348 (“When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.”) (footnote omitted).

"When the moving party has carried its burden under Rule 56(c


"[A] copyright plaintiff cannot base her opposition to summary judgment entirely on the hope that a fact finder will disbelieve the persons who have submitted affidavits on issues of access."


Context: . Decisions from other circuits also evince a trend toward allowing eyewitness expert testimony.

Compare United States v. Amaral, 488 F.2d 1148 (9th Cir.1973) (affirming refusal to admit testimony of psychological experts in the field of eyewitness identification), United States v. Brown, 501 F.2d 146 (9th Cir.1974) (same), United States v. Brown, 540 F.2d 1048 (10th Cir.1976) (same), and United States v. Thevis, 665 F.2d 616, 641 (5th Cir.1982), with United States v. Brownlee, 454 F.3d 131, 140-44 (3d Cir.2006) (reversible error to exclude expert testimony explaining problems inherent in stranger-to-stranger eyewitness identifications, finding that "expert testimony was the only method of imparting confidence in erroneous identifications”); United States v. Mathis, 264 F.3d 321, 340-42 (3d Cir.2001) (finding an abuse of discretion where district court excluded expert testimony on eyewitness identification and rejecting government's argument that the jury did not need an expert be aware of such factors); United States v, Harris, 995 F.2d 532, 534-35 (4th Cir.1993) (recognizing a "trend in recent years to allow such testimony” and collecting cases in which such testimony was allowed in cases involving "cross-racial identification, identification after a long delay, identification after observation under stress, and psychological phenomena as the feedback factor and unconscious transference”); cf. United States v. Rodriguez-Felix, 450 F.3d 1117, 1125 (10th Cir.2006) (affirming district court’s exclusion testimony from eyewitness identification expert where expert’s report was deemed "woefully inadequate,” but noting that "an expert’s testimony describing how certain factors, falling outside a typical juror’s experience, may affect a eyewitness's identification is the very type of scientific knowledge to which Daubert’s relevance prong is addressed”); but see United States v. Lespier, 725 F.3d 437, 449 (4th Cir.2013) (“[W]e agree with the government that, in the typical case, the effects of sleep deprivation, like problems with eyewitness identifications, are readily comprehended by jurors and do not require an expert for their explanation.”).

affirming district court's exclusion testimony from eyewitness identification expert where expert's report was deemed "woefully inadequate," but noting that "an expert's testimony describing how certain factors, falling outside a typical juror's experience, may affect a eyewitness's identification is the very type of scientific knowledge to which Daubert's relevance prong is addressed"


"[W]e agree with the government that, in the typical case, the effects of sleep deprivation, like problems with eyewitness identifications, are readily comprehended by jurors and do not require an expert for their explanation."


recognizing a "trend in recent years to allow such testimony" and collecting cases in which such testimony was allowed in cases involving "cross-racial identification, identification after a long delay, identification after observation under stress, and psychological phenomena as the feedback factor and unconscious transference"


Context: Therefore, in determining whether the pleadings meet the requirements of the demand rule, we apply the law of the District of Columbia where NAMA was incorporated. Nevertheless, we may look to the law of other jurisdictions in interpreting comparable laws or rules, absent definitive authority in this jurisdiction.

See Jackson v. United States, 819 A.2d 963, 965 (D.C.2003) (looking to interpretations of similar statutory language by another jurisdiction for guidance); see also Pritchett v. Stillwell, 604 A.2d 886, 888 n. 2 (D.C.1992) (citation omitted) (noting that local court rules are to be given same meaning as the comparable federal rule).


Context: Here, the prosecutor used Lester Jones's prior conviction for misdemeanor possession of marijuana for impeachment. Lester Jones's narcotic offense does not fall under Rule 609(a)(2)'s ambit because it did not involve an act of dishonesty or false statement.

"A person's past drug possession does not necessarily implicate dishonesty...."

See United States v. Galati, 230 F.3d 254, 261 n. 5 (7th Cir.2000) (“A person’s past drug possession does not necessarily implicate dishonesty....”); United States v. Thompson, 559 F.2d 552, 554 (9th Cir.1977) (finding that the history of Rule 609(a) indicated that Congress sought to exempt from its purview crimes such as misdemeanor narcotics convictions); see also United States v. McDonald, 905 F.2d 871, 875 (5th Cir. 1990) (holding that drug use is not probative of character for truthfulness).


Context: Cases where a court determined that a client substantially failed to fulfill an obligation owed to counsel involved situations where the attorney would suffer immense financial hardship or exposure to sanctions for ethical violations, or a significant conflict of interest existed between attorney and client.

holding that denying counsel's motion to withdraw would result in undue hardship because continued representation while honoring client's requests would force counsel to violate ethical obligations

See also Whiting, 187 F.3d 317 (holding that denying counsel’s motion to withdraw would result in undue hardship because continued representation while honoring client’s requests would force counsel to violate ethical obligations).

See Franke, 207 Md.App. 679, 55 A.3d 713 (holding that counsel would suffer undue hardship if motion to withdraw was not granted because client failed to pay over $120,000 in legal fees, yet expected continued representation by counsel); Fidelity, 310 F.3d 537 (reversing an order denying appellant’s motion to withdraw because client failed to pay over $470,000 in legal fees and expenses).


reversing an order denying appellant's motion to withdraw because client failed to pay over $470,000 in legal fees and expenses


Context: The government cannot "possess" a statement as defined in the Jencks Act apart from the writing or recording in which it is memorialized. Further, to be producible under the Jencks Act, a "statement" (i.e. the transcript or recording thereof) must be "in the possession of the United States." 18 U.S.C. SS 3500(b). If the government has not requested and received a transcript from a court reporter, then obviously the transcript or statement is not "in the possession of the United States."

"The government has no obligation to transcribe stenographic notes of testimony in a criminal trial just in case some of the witnesses might be later called upon to testify in a related trial"

See United States v. Moeckly, 769 F.2d 453, 464 (8th Cir.1985); United States v. Cagnina, 697 F.2d 915, 922 (11th Cir.1983); United States v. Hutcher, 622 F.2d 1083, 1088 (2d Cir.1980); United States v. Baker, 358 F.2d 18, 20 (7th Cir.1966) (“The government has no obligation to transcribe stenographic notes of testimony in a criminal trial just in case some of the witnesses might be later called upon to testify in a related trial”); see also United States v. Clark, 928 F.2d 733, 738 (6th Cir.1991) (untranseribed testimony at detention hearing not “in possession” of government); United States v. Trevino, 556 F.2d 1265,1271 (5th Cir.1977) (presentence report under control of probation officer is not “in possession of the United States” for purposes of the Act).

untranseribed testimony at detention hearing not "in possession" of government


presentence report under control of probation officer is not "in possession of the United States" for purposes of the Act


Context: Section 18-8-806 has been construed as criminalizing certain threats as viewed from an objective, reasonable person's perspective. After Watts, and prior to Black, courts construing other criminal statutes proscribing certain types of threats almost uniformly applied an objective standard (from either the speaker's or the recipient's perspective) to determine whether a statement was a true threat.

threat cognizable under SS 18-9-111, criminalizing harassment by stalking, assessed under "an objective 'reasonable person' standard"

See, e.g., People v. Baer, 973 P.2d 1225, 1231, 1233 (Colo.1999) (threat cognizable under § 18-9-111, criminalizing harassment by stalking, assessed under "an objective 'reasonable person' standard"); United States v. Fulmer, 108 F.3d 1486, 1490-91 (1st Cir.1997); United States v. Aman, 31 F.3d 550, 553-56 (7th Cir.1994); United States v. Malik, 16 F.3d 45, 49 (2d Cir.1994); United States v. Kosma, 951 F.2d 549, 556-57 (3d Cir.1991); United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990).

But see United States v. Patillo, 438 F.2d 13, 15 (4th Cir.1971) (en banc) (in prosecution for threatening the President, the prosecution must prove a present intent to do injury if the threat is communicated to someone other than the President).


Context: Lower federal courts have recognized that the statute codified the prior adequacy standard.

"the decisions indicate that 'plain, speedy and efficient' means no more than the prior equity standard of 'adequacy' "

See Garrett v. Bamford, 538 F. 2d, at 67 ("the decisions indicate that 'plain, speedy and efficient’ means no more than the prior equity standard of 'adequacy’ ”); Dillon v. Montana, 634 F. 2d 463, 466-467 (CA9 1980) (recognizing that Congress gave explicit sanction to pre-existing equity practice and stating that "[t]he remedial certainty contemplated by § 1341 is that a state forum be empowered to consider claims that a tax is unlawful and to issue adequate relief”); United Gas Pipe Line Co. v. Whitman, 595 F. 2d 323, 325 (CA5 1979) (“Since the 1937 statute was intended as a codification of judicial practice prior to its passage, both the Supreme Court and this court have found it useful to draw on the background of pre-1937 decisions in interpreting the purposes and policies which underlie it”); Charles R. Shepherd, Inc. v. Monaghan, 256 F. 2d 882, 884 (CA5 1958) (federal court has no jurisdiction under the Tax Injunction Act if “an adequate remedy is provided for the recovery back if improperly collected”); see also Louisville & Nashville R. Co. v. Public Service Comm’n, 631 F. 2d 426 (CA6 1980) (state remedy limited to seeking upward revision of other taxpayers’ assessments did not bar federal-court jurisdiction under § 1341), cert.. denied, post, p. 959; Alnoa G.

state remedy limited to seeking upward revision of other taxpayers' assessments did not bar federal-court jurisdiction under SS 1341


recognizing that Congress gave explicit sanction to pre-existing equity practice and stating that "[t]he remedial certainty contemplated by SS 1341 is that a state forum be empowered to consider claims that a tax is unlawful and to issue adequate relief"


"Since the 1937 statute was intended as a codification of judicial practice prior to its passage, both the Supreme Court and this court have found it useful to draw on the background of pre-1937 decisions in interpreting the purposes and policies which underlie it"


federal court has no jurisdiction under the Tax Injunction Act if "an adequate remedy is provided for the recovery back if improperly collected"


Context: For example, the Eighth Circuit found that the Spearman court "specifically explained that the plaintiffs fault-based retaliatory discharge claim-was not embodied in the Illinois statutory workers' compensation scheme, but rather derived from the state's common law." Thus, the action arose under the state's workers' compensation laws.

"Because the [cause] of action at issue in Spearman ... [is] so different from Alabama's retaliatory discharge statute, [that case has] little persuasive force here."

See Suder, 116 F.3d at 1352 (“[Spearman ], however, is distinguishable. In Spearman, the court was careful to point out that the Illinois law of retaliatory discharge had its genesis, not in any statutory workers’ compensation scheme, but rather in the general tort law of the state.”); see also Reed, 206 F.3d at 1060 (“Because the [cause] of action at issue in Spearman ... [is] so different from Alabama’s retaliatory discharge statute, [that case has] little persuasive force here.”).

"[Spearman ], however, is distinguishable. In Spearman, the court was careful to point out that the Illinois law of retaliatory discharge had its genesis, not in any statutory workers' compensation scheme, but rather in the general tort law of the state."


Context: . In addition to the Wreck Act, courts have found that other later-enacted statutes impliedly repealed the Limitation Act for cases arising under those statutes.

See Tug ALLIE-B, 273 F.3d at 948-49 (holding that the Limitation Act does not apply to claims brought under the Park System Resource Protection Act); Complaint of Metlife Capital Corp., 132 F.3d 818, 822 (1st Cir.1997) (holding that the Limitation Act does not apply to claims brought under the Oil Pollution Act); In re The Glacier Bay, 944 F.2d 577, 583 (9th Cir. 1991) (holding that the Limitation Act does not apply to claims brought under the Trans-Alaska Pipeline Authorization Act); United States v. CF Indus., Inc., 542 F.Supp. 952, 955-56 (D.Minn.1982) (holding that the Limitation Act does not apply to claims brought under the Clean Water Act); cf. Transporter Marine, 217 F.3d at 339-40 (holding that Coast Guard alcohol and drug regulations are not subject to the Limitation Act).


holding that the Limitation Act does not apply to claims brought under the Oil Pollution Act


holding that the Limitation Act does not apply to claims brought under the Trans-Alaska Pipeline Authorization Act


holding that the Limitation Act does not apply to claims brought under the Clean Water Act


Context: Substantial evidence supports the agency's determination that the government met its burden of showing Valenzuela abandoned her lawful permanent resident status because the record does not compel the conclusion that she consistently intended promptly to return to the United States.

alien's trip abroad is temporary only if he has a "continuous, uninterrupted intention to return to the United States during the entirety of his visit"

See Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir.1997) (holding that “[t]he relevant intent is not the intent to return ultimately, but the intent to return to the United States within a relatively short period”); see also Chavez-Ramirez v. INS, 792 F.2d 932, 937 (9th Cir.1986) (alien’s trip abroad is temporary only if he has a “continuous, uninterrupted intention to return to the United States during the entirety of his visit”).

holding that "[t]he relevant intent is not the intent to return ultimately, but the intent to return to the United States within a relatively short period"


Context: Section 157(d) does not define the term "cause." District courts in this circuit have considered a number of factors in evaluating cause: whether the claim or proceeding is core or non-core, whether it is legal or equitable, and considerations of efficiency, prevention of forum shopping, and uniformity in the administration of bankruptcy law.

factors include whether action is core or non-core and issues of "(1

See, e.g., In re Kenai Corp., 136 B.R. 59, 61 (S.D.N.Y.1992) (factors include whether action is core or non-core and issues of “(1) judicial economy, (2) uniform bankruptcy administration, (3) reduction of forum shopping, (4) economical use of debtors’ and creditors[’] resources, (5) expediting the bankruptcy process, and (6) the presence of a jury demand”); In re Century Brass Prods., Inc., No. 2:91-79, 1992 WL 22191, at *3, 1992 U.S. Dist. LEXIS 1277, at *8 (D.Conn. Jan. 7, 1992) (promotion of uniformity in bankruptcy administration, judicial economy, and the Bankruptcy Court’s knowledge of the facts warranted denying motion to withdraw reference); In re Mountain View Coach Line, Inc., No. 88 Civ. 5385, 1989 WL 129479, at *1, 1989 U.S. Dist. LEXIS 12698, at *2 (S.D.N.Y. Oct. 24,1989) (court should consider whether matter is core or non-core and issues of judicial economy); In re Wedtech Corp., 94 B.R. 293, 296 (S.D.N.Y.1988) (uniformity, forum shopping, efficiency, and jury trial considerations all are relevant); see also Holland America Ins. Co. v. Roy, 777 F.2d 992, 999 (5th Cir.1985) (“The district court should consider the goals of promoting uniformity in bankruptcy administration, reducing forum shopping and confusion, fostering the economical use of the debtors’ and creditors’ resources, and expediting the bankruptcy process.”); 1 Collier on Bankruptcy ¶ 3.01[2][e], at 3-64.

"The district court should consider the goals of promoting uniformity in bankruptcy administration, reducing forum shopping and confusion, fostering the economical use of the debtors' and creditors' resources, and expediting the bankruptcy process."


promotion of uniformity in bankruptcy administration, judicial economy, and the Bankruptcy Court's knowledge of the facts warranted denying motion to withdraw reference


court should consider whether matter is core or non-core and issues of judicial economy


uniformity, forum shopping, efficiency, and jury trial considerations all are relevant


Context: The court is also aware that survey evidence can be used in FDCPA cases to show how readers unburdened by a legal education or other experience or education in business and legal matters might interpret collection notices.

See Durkin, 406 F.3d at 419, 422-23 (affirming summary judgment for defense after finding that district court properly rejected survey evidence as irrelevant and unreliable); Chuway, 362 F.3d at 948; Pettit v. Retrieval Masters Creditor Bureau, Inc., 211 F.3d 1057, 1062 (7th Cir.2000); see also Johnson v. Revenue Management Corp., 169 F.3d 1057, 1060 (7th Cir.1999) (explaining that survey evidence under the FDCPA would be useful only if it included some benchmark measure comparing the understanding of lawful notices, since one would expect some level of confusion among unsophisticated consumers even of perfectly lawful notices).


Context: Related cases have also generated two appeals to the United States Court of Appeals for the Eighth Circuit. One appeal dealt with the question of whether or not the identities of various confidential informants should be disclosed to Plaintiffs for use in this and related civil litigation.

affirming Judge Ur-bom's refusal to require the government to disclose the names of confidential informants and to produce unredacted search warrant affidavit for civil-litigation purposes

United States v. Jones Oil Co., 60 F.3d 831, 1995 WL 408251 (8th Cir.1995) (affirming Judge Ur-bom’s refusal to require the government to disclose the names of confidential informants and to produce unredacted search warrant affidavit for civil-litigation purposes).

adopting Judge Urbom's decision and holding that the government should not be compelled to disclose identities of confidential informants described but not named in search warrant affidavit

See also Jones I, 869 F.Supp. at 749-50 (adopting Judge Urbom’s decision and holding that the government should not be compelled to disclose identities of confidential informants described but not named in search warrant affidavit).


Context: (Trial Tr. 197, July 7, 2004.) This line of inquiry improper, as it was beyond the scope of anything Turbe testified about.

See United States v. Pantone, 609 F.2d 675, 681 (3d Cir. 1979) (noting that rebuttal testimony is improper when it “does not rebut anything said by the defendant.”); see also United States v. Forsythe, 594 F.2d 947 (3d Cir. 1979) (holding that evidence of uncharged crimes was improper on rebuttal, since none of the defendants made any general denial of wrongdoing which might have justified rebuttal in the form of evidence of uncharged crimes).

noting that rebuttal testimony is improper when it "does not rebut anything said by the defendant."


Context: On the merits, Espinosa is entitled to no relief as a matter of law since neither the trial court nor his defense attorney had an obligation to inform him that state convictions could be used to enhance subsequent federal sentences.

criminal defendant not entitled to eviden-tiary hearing based upon allegation that his counsel misadvised him as to potential for enhanced penalties for defendant's future criminal behavior

See Ford v. State, 753 So.2d 595, 596 (Fla. 3d DCA 2000) (stating that: “neither the defense attorney nor the trial court is duty-bound to anticipate the defendant’s recidivism and warn him of the sentence-enhancing consequences his plea may have for any future crimes he commits, and we conclude that Ford is not entitled to an evidential hearing on the matter.”); see also Rhodes v. State, 701 So.2d 388 (Fla. 3d DCA 1997) (criminal defendant not entitled to eviden-tiary hearing based upon allegation that his counsel misadvised him as to potential for enhanced penalties for defendant’s future criminal behavior).

stating that: "neither the defense attorney nor the trial court is duty-bound to anticipate the defendant's recidivism and warn him of the sentence-enhancing consequences his plea may have for any future crimes he commits, and we conclude that Ford is not entitled to an evidential hearing on the matter."


Context: I concur in the result to reverse. Under Alabama law, an alternating award of custody is not ipso facto improper in every circumstance.

affirming judgment specifying child's "visitation" with each parent for six months each year

See, e.g., Hughston v. Ivey, 479 So.2d 1277, 1279 (Ala.Civ.App.1985) (affirming custody judgment placing preschool child with each parent for alternating six-month periods); Emmons v. Emmons, 450 So.2d 148, 148-49 (Ala.Civ.App.1984) (affirming judgment alternating custody of three-year-old child between parents every six weeks); cf. Darby v. Sherrer, 689 So.2d 875 (Ala.Civ.App.1996) (affirming judgment specifying child’s “visitation” with each parent for six months each year); see generally Comment Note, “Split,” “Divided,” or “Alternate” Custody of Children, 92 A.L.R.2d 695 (1963).


affirming judgment alternating custody of three-year-old child between parents every six weeks


Context: "Waiver is the intentional relinquishment or abandonment of a known right." By assenting to settlement in this action, Defendants waived, for example, the right to contest the EPA's regulatory jurisdiction, which would have been an element of the EPA's substantive claim.

"[T]he interstate connection, i.e. that the waters involved were 'waters of the United States,' is merely an element of the United States' Clean Water Act case under section 301."

See United States v. Krilich, 209 F.3d 968, 972 (7th Cir.2000) (“[T]he interstate connection, i.e. that the waters involved were ‘waters of the United States,’ is merely an element of the United States’ Clean Water Act case under section 301.”), cert. denied, 531 U.S. 992, 121 S.Ct. 482, 148 L.Ed.2d 455 (2000); see also United States v. Wilson, 133 F.3d 251, 264 (4th Cir.1997) (indicating proof of interstate nexus is an element of criminal liability under CWA); United States v. Ahmad, 101 F.3d 386, 391 (5th Cir.1996) (recognizing the existence of “purely jurisdictional elements”).


Context: . While the Utah Code does not define the term "medical condition," other state courts addressing this issue have concluded that the term "medical" encompasses both mental and physical health.

explaining that a psychologist treating a patient for well-established psychological problems constitutes treating the patient for "medical" purposes

State v. Robinson, 153 Ariz. 191, 735 P.2d 801, 809 n. 9 (1987) (explaining that a psychologist treating a patient for well-established psychological problems constitutes treating the patient for "medical” purposes); cf. Madere v. State, 2000-KA-00347-SCT ¶ 40 (Miss.2001), 794 So.2d 200 (holding that the term "medical,” as used in the hearsay exception regarding statements made for the purpose of medical diagnosis or treatment, includes emotional and mental health as well as physical health).

holding that the term "medical," as used in the hearsay exception regarding statements made for the purpose of medical diagnosis or treatment, includes emotional and mental health as well as physical health


Context: (Tr., Doc. 77:7, fines 11-17.). Based on the clear evidence, I find that no connection existed between the gay pride speech and any disruptions that may have resulted at Ponce de Leon in September 2007.

finding that "other than the involvement of articles of clothing, little evidence has been presented to explain the nexus between a racial incident and the threat of a disruption relating to issues of sexuality."

See Chambers v. Babbitt, 145 F.Supp.2d 1068, 1072 (D.Minn.2001) (finding that “other than the involvement of articles of clothing, little evidence has been presented to explain the nexus between a racial incident and the threat of a disruption relating to issues of sexuality.”); cf. Blackwell, supra, 363 F.2d at 754 (upholding ban on speech because “the reprehensible conduct ... was so inexorably tied to the wearing of the buttons that the two are not separable.”).

upholding ban on speech because "the reprehensible conduct ... was so inexorably tied to the wearing of the buttons that the two are not separable."


Context: Credibility findings demand even greater deference. When applying this standard of review, we necessarily incorporate an understanding of the appropriate burden of proof in the district court.

holding that a finding of fraud may be reversed only for clear error, but that the finding must be judged in view of the "clear and convincing" burden of proof

See Marsellus v. Comm’r, 544 F.2d 883, 885 (5th Cir.1977) (holding that a finding of fraud may be reversed only for clear error, but that the finding must be judged in view of the “clear and convincing” burden of proof); see also MacDonald v. Kahikolu, Ltd., 581 F.3d 970, 976 (9th Cir.2009) (reviewing for clear error the district court’s finding that the evidence clearly and convincingly established a fact); EEOC v. Maricopa Cnty. Cmty. Coll. Dist., 736 F.2d 510, 513 (9th Cir.1984) (reviewing for clear error the district court’s factual conclusion that a party had sustained its burden of proving that a statutory provision applied).

reviewing for clear error the district court's finding that the evidence clearly and convincingly established a fact


reviewing for clear error the district court's factual conclusion that a party had sustained its burden of proving that a statutory provision applied


Context: However, given Walsh's testimony that he did not know when it first occurred to him that he should repay the money and the testimony of Senator Tson-gas and Frank Daly that they knew of no formal trip cancellation being communicated, a jury could reasonably have concluded that Walsh did not know in September 1984 that his retention of the funds was wrongful. Thus, the district court did not err in refusing to dismiss the embezzlement count as a matter of law on statute of limitations grounds.

"[t]he determination of when willfulness manifests itself is a factual issue which must be determined by the jury"

See United States v. Sams, 865 F.2d at 716 (“[t]he determination of when willfulness manifests itself is a factual issue which must be determined by the jury”); cf. United States v. Andros, 484 F.2d 531, 532 (9th Cir.1973) (in a tax case of which willfulness is an essential element, the statute of limitations begins to run when the failure to pay became willful, not when the taxes were assessed).


Context: Ponzo spends no time explaining how he suffered prejudice. And although the second question may have suggested that Costello was somehow involved in marijuana trafficking, the query went unanswered, plus the court told the jury that lawyers' questions are not evidence.

noting that demonstrating prejudice is "more difficult" when questions go unanswered

See United States v. Innamorati, 996 F.2d 456, 485 (1st Cir. 1993) (finding no prejudice where witness did not answer the challenged question and the court instructed the jury that lawyers’ statements are not evidence); see also United States v. Robinson, 473 F.3d 387, 394 (1st Cir. 2007) (noting that demonstrating prejudice is “more difficult” when questions go unanswered). So we cannot say that the complained-of errors rise to the level of plain error.

finding no prejudice where witness did not answer the challenged question and the court instructed the jury that lawyers' statements are not evidence


Context: Young did not speak as a private citizen. In Flora, we concluded that the plaintiff plausibly established that he spoke as a citizen (and not as the county's chief public defender) by alleging that, among other things, when his speech " 'up the chain of command'" failed to produce results, he took drastic measures by filing a funding lawsuit against the county and by reporting that thousands of delinquency adjudications and consent decrees had not been expunged as the state supreme court had ordered.

concluding that borough manager did not speak as citizen when relaying complaints about mayor's harassment and intimidation to borough council president pursuant to official duties as borough manager

See, e.g., Hill, 455 F.3d at 242 (concluding that borough manager did not speak as citizen when relaying complaints about mayor’s harassment and intimidation to borough council president pursuant to official duties as borough manager).

who evidently had accused Young himself of misconduct and was one of Young's own subordinates

Flora, 776 F.3d at 180. In contrast, it was part of Young’s ordinary job duties as a lieutenant in the Irvington Police Department to file an Internal Affairs complaint stating that, inter alia, Chief of Police Chase showed favoritism to another police officer (who evidently had accused Young himself of misconduct and was one of Young’s own subordinates) because of a sexual relationship between the Chief of Police and the officer’s sister.


Context: "[T]his case is not one in which review under ORS 34.010 to ORS 34.102 was unavailable had it been timely filed, or a case in which another specific statutory or a common-law remedy exists for which there is jurisdiction over the cause.

See Shockey v. City of Portland, 313 Or 414, 837 P2d 505 (1992), cert den 507 US 1017 (1993) (holding that the trial court had subject matter jurisdiction over a common-law wrongful discharge claim); see also Ettner v. City of Medford, 155 Or App 435, 963 P2d 149, rev den 328 Or 40 (1998) (holding that, regarding claims for employment discrimination under ORS chapter 659, the exclusivity provision of ORS 34.102(2) was inapplicable).


Context: Plaintiffs challenge the correctness of the Supreme Court's decision in Feres. Because the Supreme Court has not overruled Feres, we must follow it.

"[W]e are bound to follow this well-worn path [of Feres]."

See, e.g., State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) (“[I]t is [the Supreme] Court’s prerogative alone to overrule one of its precedents.”); Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1196 (9th Cir. 2008) (“[I]n the absence of any Supreme Court decision overruling [an earlier Supreme Court precedent], we must follow the Supreme Court precedent that directly controls, leaving to the Court the prerogative of overruling its own prior decisions.” (internal quotation marks omitted)); see also Costo v. United States, 248 F.3d 863, 869 (9th Cir. 2001) (“[W]e are bound to follow this well-worn path [of Feres].”).

"[I]t is [the Supreme] Court's prerogative alone to overrule one of its precedents."


Context: The HOA's lien, which attached prior to FHFA's placing of Fannie Mae into conservatorship, is not extinguished by section 4617(j)(3) and does not lose its priority status, so the HOA is not deprived of its property interest. However, section 4617(j)(3) does prevent the HOA from selling the Property at foreclosure'free and clear of Fannie Mae's Deed of Trust, and "at some point a delay in the ability to exercise property rights may constitute a compensable taking."

"Unmitigated delay, coupled with diminishment of distinct investment-backed expectations, may, at some point, infringe on the entire 'bundle' of rights enjoyed by the Appellants to the point that a compensable taking occurs."

Cebrick, 53 F.3d at 24 (finding that a delay in the enforcement of a tax lien against the FDIC caused by 12 U.S.C. § 1825(b)(2) at some point would rise to the level of a due process violation); see also Matagorda Cnty., 19 F.3d at 225 (“Unmitigated delay, coupled with diminishment of distinct investment-backed expectations, may, at some point, infringe on the entire ‘bundle’ of rights enjoyed by the Appellants to the point that a compensable taking occurs.”).

finding that a delay in the enforcement of a tax lien against the FDIC caused by 12 U.S.C. SS 1825(b


Context: At oral argument, Joseph made additional arguments that were not raised before the district court or in any of his appellate briefs, such as that African Americans were systematically excluded from clinical trial inspections and that the FDA was allegedly testing Fenfluramine on minority young people in order to research their propensity for violence. These arguments are waived, however, as they were not raised in appellant's opening brief and were not argued in the district court.

"Arguments may not be made for the first time in a reply brief'

See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below”); cf. Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir.1993) (“Arguments may not be made for the first time in a reply brief’).

"It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below"


Context: You gentlemen are welcome to search anywhere on my premises you want to search and take anything you find."). Regardless, the Schneckloth Court rejected the type of per se rule the dissent proposes.

noting that "there are no per se rules" in deciding whether consent was voluntary

See 412 U.S. at 229, 93 S.Ct. 2041 (“The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone.”); see also United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (noting that “there are no per se rules” in deciding whether consent was voluntary).

"The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone."


Context: P14 Probable cause to believe that a man has committed a crime on the street does not necessarily give rise to probable cause to search his home. And an officer's general conclusions about drug dealers' habits are, standing alone, insufficient to justify a search of a suspected drug dealer's home.

stating "an officer's belief that persons who cultivate marijuana often keep records and materials in safe houses is not, in our judgment, a sufficient basis for the issuance of a warrant to search a residence of a person connected to the grow operation"

Thein, 138 Wn.2d at 148-49 (holding that broad generalizations do not alone establish probable cause); see also State v. Olson, 73 Wn. App. 348, 357, 869 P.2d 110 (1994) (stating “an officer’s belief that persons who cultivate marijuana often keep records and materials in safe houses is not, in our judgment, a sufficient basis for the issuance of a warrant to search a residence of a person connected to the grow operation”).


Context: An accused initiates communication by making a statement that "evince[s] a willingness and a desire for a generalized discussion about the investigation[.]"

asking "Well, what is going to happen to me now?" initiated communication

Oregon v. Bradshaw, 462 US 1039, 1045-46, 103 S Ct 2830, 77 L Ed 2d 405 (1983) (asking “Well, what is going to happen to me now?” initiated communication).

inquiring about "the charge itself * * * what it carried and so forth" did not show willingness to discuss the investigation

But see State v. Crawford, 73 Or App 53, 58-59, 698 P2d 40 (1985) (inquiring about “the charge itself * * * what it carried and so forth” did not show willingness to discuss the investigation).


Context: It remains an open question of law, at least in the First Circuit, whether there is related-to jurisdiction over a case against a non-debtor, third-party defendant who has a potential (as opposed to an actual) claim for contribution or indemnity against the debtor.

"[T]he determination of whether a removed state court proceeding is sufficiently related to a debtor's bankruptcy to confer subject matter jurisdiction is complicated by what appears to be contradictory opinions."

See Cambridge Place, 2010 WL 6580503, 2010 U.S. Dist. LEXIS 142954 (noting that “[t]he First Circuit has not yet addressed the appropriate standard to be applied in evaluating whether contractual indemnification obligations give rise to ‘related to’ bankruptcy jurisdiction.”); see also In re Santa Clara County Care Consortium, 223 B.R. 40 (1st Cir. BAP 1998) (“[T]he determination of whether a removed state court proceeding is sufficiently related to a debtor’s bankruptcy to confer subject matter jurisdiction is complicated by what appears to be contradictory opinions.”).

noting that "[t]he First Circuit has not yet addressed the appropriate standard to be applied in evaluating whether contractual indemnification obligations give rise to 'related to' bankruptcy jurisdiction."


Context: For the inmate requesting documents in anticipation of a collateral attack on his conviction, adequate opportunity to present his claims requires first and foremost meaningful access to the post-conviction procedures provided by the legislature in La. C.Cr.P. art. 924 et seq. That access does not require the state to underwrite the inmate's efforts to overturn his conviction and sentence by providing him generally with doeu-ments | 3/4 " 1/8 0 comb the record for errors." An inmate therefore cannot make a showing of particularized need absent a properly filed application for post conviction relief which sets out specific claims of constitutional errors requiring the requested documentation for support.

"a petition for post-conviction relief must be on file and the district court must determine that the petition has merit" before an inmate will receive free copies of transcripts

Cf. Cutbirth v. State, 695 P.2d 156, 159 (Wyo.1985) (“a petition for post-conviction relief must be on file and the district court must determine that the petition has merit” before an inmate will receive free copies of transcripts); Reed v. State, 310 Ark. 651, 840 S.W.2d 165, 166 (1992) (free copies of “material on file” available to inmate only when he “demonstrates some compelling need for specific documentary evidence to support an allegation contained in a petition for post conviction relief’).

"[d]ue process and equal protection surely do not require the providing of transcripts to make petitioner aware in the first instance of events or occurrences which constitute grounds for collateral attack"

See Payton, swpra; State v. Drozd, 116 Ariz. 330, 569 P.2d 272, 274 (Ct. App.1977) (“[d]ue process and equal protection surely do not require the providing of transcripts to make petitioner aware in the first instance of events or occurrences which constitute grounds for collateral attack”).


free copies of "material on file" available to inmate only when he "demonstrates some compelling need for specific documentary evidence to support an allegation contained in a petition for post conviction relief'


Context: Perhaps because Executive Coach did not raise this argument until its reply brief, the district court did not rule on it, and "we do not normally consider issues which the district court did not rule upon." To the extent that the argument is properly before us, we And that Executive Coach has not met its burden to demonstrate that conflict preemption applies: It has not shown that it is impossible to comply with its warranty obligation and the FMVSS, nor has it established that its warranty obligation "stands as an obstacle" to the objectives of the Safety Act or the FMVSS.

Geier, 529 U.S. at 873-74, 120 S.Ct. 1913 (internal quotation omitted); Williams v. Nat’l Football League, 582 F.3d 863, 880 (8th Cir. 2009) (burden is on party asserting federal preemption of state law); see also Fabian, 628 F.3d at 282-83 (holding that common law misrepresentation claims were not preempted because they did not conflict with a FMVSS).


Context: In the labor context, "state contract law must yield to the developing federal common law, lest common terms in bargaining agreements be given different and potentially inconsistent interpretations in different jurisdictions." As the Court of Appeals for the Sixth Circuit observed in a similar situation, an agreement between a union and an employer regarding the terms under which an employee will return to work is "a creature wholly begotten by the [collective bargaining agreement]."

Jones v. General Motors Corp., 939 F.2d 380, 383 (6th Cir.1991) (holding that state law claim regarding breach of settlement agreement was preempted by federal labor law); see also Davis v. Bell Atlantic-West Virginia, Inc., 110 F.3d 245, 249 (4th Cir.1997) (same); Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1048-49 (9th Cir.1987) (holding that oral agreement made in connection with reinstatement should be treated as part of collective bargaining agreement).


Context: Both federal and state courts in other jurisdictions have interpreted Manson to stand for the proposition that extrinsic evidence of guilt should play no part when courts analyze the independent reliability of an inherently suggestive identification procedure.

concluding "that evidence of record that is unrelated to an identification but that is supportive of a finding of guilt is properly considered in harmless-error analysis, not in the due process inquiry of whether the identification has reliability"

See, e.g., United States v. Greene, 704 F.3d 298, 310 (4th Cir.2013) (“[E]vidence extrinsic to an identification cannot be considered in evaluating the reliability of the identification.” (em phasis omitted)); Raheem, supra, 257 F.3d at 141 (concluding “that evidence of record that is unrelated to an identification but that is supportive of a finding of guilt is properly considered in harmless-error analysis, not in the due process inquiry of whether the identification has reliability”); United States v. Rogers, 126 F.3d 655, 659 (5th Cir.1997) (“[A]dmissibility rests on the reliability of the identification judged solely by the circumstances indicating whether it was likely to be a well-grounded identification, not whether it seems likely to have been correct in light of other available evidence.” (citation omitted)); Graham v. Solem, 728 F.2d 1533, 1546 (8th Cir.1984) (“[Ojther evidence of guilt does not play a formal role in the analysis” of admissibility of eyewitness identification); see also Wise v. Commonwealth, 6 Va.App. 178, 367 S.E.2d 197, 201 (1988) (“[Ojther evidence of a defendant’s guilt, not dealing with the individual eyewitness’s personal observation and memory, plays no part in the analysis of the reliability of that eyewitness’s identification.”); Richards v. People of the Virgin Islands, 53 V.I. 379, 388 n. 4, 2010 WL 318405 (V.I.2010) (“Consistent with the majority of jurisdictions, it is evident that corroborating evidence of guilt would be relevant only to a harmless error analysis.”).

"[Ojther evidence of a defendant's guilt, not dealing with the individual eyewitness's personal observation and memory, plays no part in the analysis of the reliability of that eyewitness's identification."


"Consistent with the majority of jurisdictions, it is evident that corroborating evidence of guilt would be relevant only to a harmless error analysis."


"[Ojther evidence of guilt does not play a formal role in the analysis" of admissibility of eyewitness identification


Context: We also find no plain error in the district court's failure to instruct the jury regarding the proper weight to be given Valentine's opinion testimony since Ramsey can show no prejudice from the admission of that testimony.

no prejudice in light of overwhelming evidence of defendant's predisposition and guilt and fact that Government did not rely on challenged opinion testimony during summation

See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (in plain error cases appellant bears “burden of persuasion with respect to prejudice”); United States v. Catlett, 97 F.3d 565, 571 (D.C.Cir.1996) (no bar in this Circuit to “dual testimony as both a fact and expert witness”); see also United States v. Anderskow, 88 F.3d 245, 251 (3d Cir.) (no prejudice in light of overwhelming evidence of defendant’s predisposition and guilt and fact that Government did not rely on challenged opinion testimony during summation), cert. denied, — U.S. -, 117 S.Ct. 613, 136 L.Ed.2d 537 (1996).

in plain error cases appellant bears "burden of persuasion with respect to prejudice"


no bar in this Circuit to "dual testimony as both a fact and expert witness"


See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (in plain error cases appellant bears “burden of persuasion with respect to prejudice”); United States v. Catlett, 97 F.3d 565, 571 (D.C.Cir.1996) (no bar in this Circuit to “dual testimony as both a fact and expert witness”); see also United States v. Anderskow, 88 F.3d 245, 251 (3d Cir.) (no prejudice in light of overwhelming evidence of defendant’s predisposition and guilt and fact that Government did not rely on challenged opinion testimony during summation), cert. denied, 519 U.S. 1042, 117 S.Ct. 613, 136 L.Ed.2d 537 (1996).


Context: In its brief, DOCS omits the sentence in the regulations immediately following the passage it quotes. That sentence indicates that "[o]ther impairments, however, such as HIV infection, are inherently substantially limiting." 29 C.F.R. Pt. 1630, App. SS 1630.2Q). This unquoted sentence undercuts DOCS's argument since it confirms that some diagnoses can reveal an impairment which is "inherently substantially limiting."

See also Albertson’s, 527 U.S. at 566, 119 S.Ct. 2162 (noting that some impairments may invariably cause a substantial limitation of a major life activity); cf. Fountain, 190 F.Supp.2d at 339 (noting that the general diagnosis “received chemotherapy” would cause an employee to divulge a disability or perceived disability).

noting that the general diagnosis "received chemotherapy" would cause an employee to divulge a disability or perceived disability


Context: As to the events of September 9, IBP is also entitled to summary judgment. IBP's unavailing request for a second sample simply cannot be viewed as an intrusion -- let alone a substantial intrusion -- on plaintiff's privacy.

firing employee who refused to consent to urinalysis and personal property searches would violate public policy exception to Pennsylvania employment-at-will doctrine if testing program would be tortious invasion of employee's privacy

Cf. Borse 963 F.2d at 626 (firing employee who refused to consent to urinalysis and personal property searches would violate public policy exception to Pennsylvania employment-at-will doctrine if testing program would be tortious invasion of employee’s privacy).

See, e.g., Greco v. Halliburton Co., 674 F.Supp. at 1451 (plaintiff could not prove that termination for refusal to submit to urinalysis was invasion of privacy); Gilmore v. Enogex, Inc., 878 P.2d 360, 366-67 (Okla. 1994) (employer did not invade employee’s privacy by demanding random drug test); Jennings v. Minco Technology Labs, Inc., 765 S.W.2d 497, 502 (1989) (where employee refused consent to drug test, employer not liable for invasion of privacy); Gretencord v. Ford Motor Co., 538 F.Supp. 331, 333 (D.Kan.1982) (employee who refused to let employer search vehicle could not sue for damages “as a result of an act that did not occur.”).


employer did not invade employee's privacy by demanding random drug test


where employee refused consent to drug test, employer not liable for invasion of privacy


employee who refused to let employer search vehicle could not sue for damages "as a result of an act that did not occur."


Context: Moreover, Sherman has failed to show a reasonable probability that but for trial counsel's alleged errors, the result of the proceeding would have been different. Juror #12's statements were not so inherently prejudicial such as to deny Sherman a fair trial because (1) the comments did not necessarily brand Sherman as a criminal who had committed the specific crimes at issue in this case; and (2) the comments did not link Sherman to any other criminal violations.

Where prospective juror's comments "neither necessarily implied Appellants' guilt of the offense under consideration, nor linked them to other criminal violations," the remarks were not inherently prejudicial and did not deprive the Appellants of their right to begin their trial with a jury "free from even a suspicion of prejudgment or fixed opinion."

See Sharpe v. State, 272 Ga. 684, 688 (5) (531 SE2d 84) (2000) (Where prospective juror’s comments “neither necessarily implied Appellants’ guilt of the offense under consideration, nor linked them to other criminal violations,” the remarks were not inherently prejudicial and did not deprive the Appellants of their right to begin their trial with a jury “free from even a suspicion of prejudgment or fixed opinion.”) (citation and punctuation omitted).

juror's comment during voir dire that the defendant was a "firebug" was inherently prejudicial where the defendant was on trial for arson

Cf. Moore v. State, 156 Ga. App. 92 (1) (274 SE2d 107) (1980) (juror’s comment during voir dire that the defendant was a “firebug” was inherently prejudicial where the defendant was on trial for arson).


Context: Moreover, the Federal Circuit has explained that the Court of Federal Claims "does not have general equity jurisdiction to grant injunctive relief."

Shemonsky v. United States, 215 F.3d 1340 (Fed.Cir.1999) (upholding decision of the Court of Federal Claims that the courts jurisdiction did not extend to injunctive or declaratory relief); see also Bank of Guam v. United States, 578 F.3d 1318, 1331 (Fed.Cir.) reh’g and reh’g en banc denied (Fed. Cir. 2009), cert. denied, 561 U.S. 1006, 130 S.Ct. 3468, 177 L.Ed.2d 1056 (2010); Martinez v. United States, 333 F.3d 1295, 1303 (Fed.Cir.2003); Choate v. United States, 60 F.3d 840 (Fed.Cir.1995) (holding that “[t]he Tucker Act does not provide a means by which the Court of Federal Claims may grant injunctive or declaratory relief where the suit does not involve a pre-award protest or the application of section 7428 of the Internal Revenue Code”).

holding that "[t]he Tucker Act does not provide a means by which the Court of Federal Claims may grant injunctive or declaratory relief where the suit does not involve a pre-award protest or the application of section 7428 of the Internal Revenue Code"


Context: Appellate courts in other jurisdictions have squarely rejected claims that the combination of investigatory, enforcement, and adjudicative functions in a single attorney disciplinary agency (or judicial disciplinary agency) violates due process principles.

But see Tweedy v. Okla. Bar Ass’n, 624 P.2d 1049, 1054-55 (1981) (holding that the Oklahoma Supreme Court, under due process principles, could not order the reinvestigation of an attorney disciplinary grievance but also noting that the Board of Governors of the state bar could review the matter).

stating that the "combination of judicial and investigative functions in the Commission [on Judicial Qualifications] did not violate petitioner's due process rights under eigher [sic] the federal constitution or Alaska's constitution"

See, e.g., In re Hanson, 532 P.2d 303, 306 (Alaska 1975) (stating that the “combination of judicial and investigative functions in the Commission [on Judicial Qualifications] did not violate petitioner’s due process rights under eigher [sic] the federal constitution or Alaska’s constitution”); People v. Varallo, 913 P.2d 1, 4 (Colo.1996) (holding that “[t]he fact that the members of the grievance committee and the disciplinary counsel are appointed by the supreme court is not enough by itself to establish a per se violation of due process”); In re Zoarski, 227 Conn. 784, 632 A.2d 1114, 1121 (1993) (holding that the combination of investigatory and adjudicatory functions in one judicial disciplinary agency does not violate due process); In re Baun, 395 Mich. 28, 232 N.W.2d 621, 623-24 (1975) (holding that Michigan’s lawyer disciplinary proceedings do not violate due process, because the functions of investigation, prosecution, adjudication, and review are “functionally separate” and are handled by different individuals); Goldstein v. Comm’n on Practice of Supreme Court, 297 Mont. 493, 995 P.2d 923, 928 (2000) (rejecting claim that Montana’s attorney disciplinary system violated due process principles because investigatory and enforcement authority were combined in one agency).


holding that "[t]he fact that the members of the grievance committee and the disciplinary counsel are appointed by the supreme court is not enough by itself to establish a per se violation of due process"


holding that the combination of investigatory and adjudicatory functions in one judicial disciplinary agency does not violate due process


holding that Michigan's lawyer disciplinary proceedings do not violate due process, because the functions of investigation, prosecution, adjudication, and review are "functionally separate" and are handled by different individuals


rejecting claim that Montana's attorney disciplinary system violated due process principles because investigatory and enforcement authority were combined in one agency


Context: For purposes of legal analysis, it is irrelevant that the defendant did not actually possess the gun." (Citations omitted.)

under capital felony statute, General Statutes SS 53a-54b [8], accessory need not be aware of victim's age while acting with intent requisite for murder

State v. Davis, supra, 792; see also State v. Higgins, 265 Conn. 35, 47-48, 826 A.2d 1126 (2003) (under capital felony statute, General Statutes § 53a-54b [8], accessory need not be aware of victim’s age while acting with intent requisite for murder); State v. Tucker, 9 Conn. App. 161, 168, 517 A.2d 640 (1986) (accessory to assault in second degree under General Statutes § 53a-60 [a] [2] need intend only to aid in causing physical injury, not that such injury be caused by dangerous instrument or deadly weapon); cf. State v. Peeler, supra, 271 Conn. 437-38 (aggravating factors under General Statutes § 53a-46a [i] arising from manner in which capital felony was committed by principal may be imputed to defendant as accomplice pursuant to § 53a-8).

aggravating factors under General Statutes SS 53a-46a [i] arising from manner in which capital felony was committed by principal may be imputed to defendant as accomplice pursuant to SS 53a-8


accessory to assault in second degree under General Statutes SS 53a-60 [a] [2] need intend only to aid in causing physical injury, not that such injury be caused by dangerous instrument or deadly weapon


Context: Contrary to Duenas-Gonzalez's contention, no Brady violation occurred. The government offered neither false evidence nor perjured testimony.

See United States v. Endicott, 869 F.2d 452, 455 (9th Cir.1989) (noting that the prosecution’s inadvertent use of perjured testimony can constitute a Brady violation); Cf. United States v. Young, 17 F.3d 1201, 1204 (9th Cir.1994) (holding that a new trial was warranted where there is reasonable probability that the false testimony introduced by the government influenced the outcome of the trial).

noting that the prosecution's inadvertent use of perjured testimony can constitute a Brady violation


Context: The district court indisputably erred in imposing a 320-month sentence. However, because Gjuraj received a concurrent 320-month sentence on the narcotics distribution charge, Gjuraj fails to show that the error affected his substantial rights or the "fairness, integrity or public reputation of judicial proceedings."

"Even if the district court erroneously imposed sentences of 151 months on Counts Two, Three, and Five, Samas cannot show (as he must for plain error review

Puckett, 129 S.Ct. at 1429 (internal quotation marks omitted); see United States v. Outen, 286 F.3d 622, 640 (2d Cir.2002) (“[A]n erroneous sentence on one count of a multiple-count conviction does not affect substantial rights where the total term of imprisonment remains unaffected ....”); see also United States v. Samas, 561 F.3d 108, 111 (2d Cir.2009) (per curiam) (“Even if the district court erroneously imposed sentences of 151 months on Counts Two, Three, and Five, Samas cannot show (as he must for plain error review) that the error affected his substantial rights, because those sentences are to run concurrently with the mandatory minimum sentence of 240 months on Count Four.”).

"[A]n erroneous sentence on one count of a multiple-count conviction does not affect substantial rights where the total term of imprisonment remains unaffected ...."


Context: Notwithstanding the complications hindering its development, Dr. Noble's testimony was effective, as demonstrated by the jury's acceptance of thirty-four of the fifty-nine mitigating circumstances. Whether Dr. Noble could have been more effective if corroborated by other evidence is speculative. We must, under the law, judge the reasonableness of the lawyers' conduct as of the time their actions occurred, not the conduct's consequences after the fact.

"When examining ineffective assistance claims, however, we must appreciate the practical limitations and tactical decisions that trial counsel faced."

Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”); see also Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir.1991) (“When examining ineffective assistance claims, however, we must appreciate the practical limitations and tactical decisions that trial counsel faced.”).

"A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."


Context: As a threshold matter, the materials compiled to support the investigation and prosecution of Sorin's unlawful options backdating activities were "records or information compiled for law enforcement purposes" under Exemption 7(C). Even though Dickstein Shapiro originally created many of these documents, Exemption 7(C) applies to documents "compiled" by the government regardless of then-original source.

"A compilation, in its ordinary meaning, is something composed of materials collected and assembled from various sources or other documents"

See John Doe Agency, 493 U.S. at 153, 110 S.Ct. 471 (“A compilation, in its ordinary meaning, is something composed of materials collected and assembled from various sources or other documents”) (citations omitted); see also Fedders Corp. v. FTC, 494 F.Supp. 325, 328 (S.D.N.Y.) (unsolicited complaint letters directed to the Federal Trade Commission were compiled for “law enforcement purposes” under Exemption 7(A) when, at the time of the FOIA request, the letters constituted “an important element in the record of an active investigation”), aff'd, Fedders Corp. v. FTC, 646 F.2d 560 (2d Cir. 1980).

unsolicited complaint letters directed to the Federal Trade Commission were compiled for "law enforcement purposes" under Exemption 7(A


Context: In an attempt to shoehorn this case into that category, the dissent hints that a federal court may be without jurisdiction to approve a settlement agreement that requires the Executive to make an unappropriated expenditure. No authority is cited for that proposition and the legal signposts in this area instead point in the opposite direction.

'We do not believe ... that Article III bars federal courts from entering consent decrees that limit executive branch discretion whenever such decrees purport to provide broader relief than a court could have awarded pursuant to an ordinary injunction."

See Local No. 93 v. City of Cleveland, 478 U.S. 501, 523, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986) (“[T]he mere existence of an unexercised power to modify the obligations contained in a consent decree does not alter the fact that those obligations were created by agreement of the parties rather than imposed by the court.”); cf. Authority of the United States to Enter Settlements Limiting the Future Exercise of Executive Branch Discretion, 23 Op. O.L.C. 126, 128 (1999) (‘We do not believe ... that Article III bars federal courts from entering consent decrees that limit executive branch discretion whenever such decrees purport to provide broader relief than a court could have awarded pursuant to an ordinary injunction.”).

"[T]he mere existence of an unexercised power to modify the obligations contained in a consent decree does not alter the fact that those obligations were created by agreement of the parties rather than imposed by the court."


Context: The term "reasonably" indicates that an objective standard should apply. The term "reasonably" is not ambiguous.

in context of professional liability insurance policy, the phrase "might be expected to be the basis of a claim or suit" was unambiguous and "perfectly clear"

Phoenix Ins. Co. v. Sukut Constr. Co., 136 Cal.App.3d 673, 186 Cal.Rptr. 513, 514 (1982) (in context of professional liability insurance policy, the phrase “might be expected to be the basis of a claim or suit” was unambiguous and “perfectly clear”); see also Coregis Ins. Co. v. Camico Mut. Ins. Co., 959 F.Supp. 1213, 1222 (C.D.Cal.1997) (“a reasonable person would have foreseen that the conduct alleged ... might form the basis of a claim or suit”).

"a reasonable person would have foreseen that the conduct alleged ... might form the basis of a claim or suit"


Context: First, the Court notes that Congress has abrogated the states' sovereign immunity for claims arising under the Voting Rights Act.

noting that the Supreme Court has "concluded that other measures protecting voting rights are within Congress' power to enforce the Fourteenth and Fifteenth Amendments, despite the burdens those measures placed on the States."

See, e.g., Mixon v. State of Ohio, 193 F.3d 389, 398-99 (6th Cir.1999); Reaves v. United States DOJ, 355 F.Supp.2d 510, 515 (D.D.C.2005) (“it is reasonable to conclude that Congress, in passing the Voting Rights Act, effected a valid abrogation of state sovereign immunity.”); see also City of Boerne v. Flores, 521 U.S. 507, 518, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (noting that the Supreme Court has “concluded that other measures protecting voting rights are within Congress’ power to enforce the Fourteenth and Fifteenth Amendments, despite the burdens those measures placed on the States.”) (citing Katzenbach, 383 U.S. at 308, 86 S.Ct. 803).

"it is reasonable to conclude that Congress, in passing the Voting Rights Act, effected a valid abrogation of state sovereign immunity."


Context: It need only be shown that during the course of the planning or original construction it became evident that land so situated would probably be needed for the public use."). In order to allow a claim that the government's project influenced the market value of the subject property to go before a jury, the landowner must present sufficient evidence that the government's project had a market impact on the subject property.

"What the trial judge decides, essentially, is whether ... the jury is to consider any alterations in value attributable to the Government project for which the condemned property is taken."

See 320.0 Acres of Land, 605 F.2d at 808 (“What the trial judge decides, essentially, is whether ... the jury is to consider any alterations in value attributable to the Government project for which the condemned property is taken.”); cf. k9.01 Acres of Land, 669 F.2d at 1368 (imposing a “heavy burden” on landowner to show that property was within the scope of the project).

imposing a "heavy burden" on landowner to show that property was within the scope of the project


Context: Defendant argues that sentencing him on the basis, in part, of an uncharged shooting is unconstitutional. He contends he is being punished for the shooting without a jury having determined beyond a reasonable doubt that he shot victim or the other procedural protections which would apply had defendant been indicted and tried for the shooting. We have rejected similar arguments and adhere to that position.

United States v. Wright, 873 F.2d 437, 441-42 (1st Cir.1989) (government need not prove facts used in sentencing beyond a reasonable doubt).

sentencing by considering relevant, uncharged conduct under U.S.S.G. SS lB1.3(a

See also United States v. Galloway, 976 F.2d 414 (8th Cir.1992) (sentencing by considering relevant, uncharged conduct under U.S.S.G. § lB1.3(a)(2) does not violate the constitutional rights to indictment, jury trial, and proof beyond a reasonable doubt); McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (factors used to raise a minimum sentence below the statutory maximum need not be proved beyond a reasonable doubt; preponderance standard satisfies due process and right to jury trial is not implicated).


Context: See Fed.R.Crim.P. 35(b). If the term "illegal sentence" included sentences that were the product of errors, constitutional or otherwise, committed in the process of sentencing, there would be no need for the "illegal manner" language in Rule 35(a).

recounting that the "illegal manner" language was added to Rule 35 to "change the result in [Hill, 368 U.S. at 430, 82 S.Ct. 468] where the then Rule 35 was held to be inapplicable to correct a sentence imposed without granting the defendant the right of allocution"

See United States v. Novak, 476 F.3d 1041, 1048 (9th Cir.2007) (stating that courts should “avoid whenever possible statutory interpretations that result in superfluous language”); see also United States v. Stevens, 548 F.2d 1360, 1362 n. 8 (9th Cir. 1977) (recounting that the “illegal manner” language was added to Rule 35 to “change the result in [Hill, 368 U.S. at 430, 82 S.Ct. 468] where the then Rule 35 was held to be inapplicable to correct a sentence imposed without granting the defendant the right of allocution”).

stating that courts should "avoid whenever possible statutory interpretations that result in superfluous language"


Context: When considering sanctions, a district court may consider all the circumstances surrounding the alleged violations, including a party's misconduct in related cases.

holding that the tax court would be "remiss not to consider" the party's bad conduct in other cases

Atkins v. Fischer, 232 F.R.D. 116, 129-31 (D.D.C.2005) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 635, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)); Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La., Inc., 38 F.3d 1414, 1417-18 (5th Cir.1994) (affirming award of sanctions when district court considered collateral bankruptcy proceedings in its sanctions order); see also Johnson v. Comm’r of Internal Revenue, 289 F.3d 452, 456-57 (7th Cir.2002) (holding that the tax court would be “remiss not to consider” the party’s bad conduct in other cases).


Context: Fingerprint identification has been admissible as reliable evidence in criminal trials in this country since at least 1911. While we have not definitively assessed the admissibility of expert fingerprint identifications in the post -Daubert era, every Circuit that has done so has found such evidence admissible.

See United States v. Hernandez, 299 F.3d 984 (8th Cir.2002) (concluding that fingerprint identification satisfies Dau-bert ); United States v. Havvard, 260 F.3d 597, 601 (7th Cir.2001) (same); United States v. Sherwood, 98 F.3d 402, 408 (9th Cir.1996) (noting defendant’s acknowledgment that “fingerprint comparison has been subjected to peer review and publication,” and holding that trial court did not commit clear error where it admitted fingerprint evidence without performing Daubert analysis); see also United States v. Llera Plaza, 188 F.Supp.2d 549, 572-73 (E.D.Pa.2002) (discussing long history of latent fingerprint evidence in criminal proceedings, and citing lack of proof of its unreliability, to hold such evidence admissible); United States v. Joseph, 2001 WL 515213, *1 (E.D.La. May 14, 2001) (observing that “fingerprint analysis has been tested and proven to be a rehable science over decades of use for judicial purposes”); United States v. Martinez-Cintron, 136 F.Supp.2d 17, 20 (D.P.R.2001) (noting that questions of reliability of fingerprint identifications can be addressed through vigorous cross-examination of expert witness).

noting defendant's acknowledgment that "fingerprint comparison has been subjected to peer review and publication," and holding that trial court did not commit clear error where it admitted fingerprint evidence without performing Daubert analysis


observing that "fingerprint analysis has been tested and proven to be a rehable science over decades of use for judicial purposes"


noting that questions of reliability of fingerprint identifications can be addressed through vigorous cross-examination of expert witness


Context: The Seventh Circuit has not directly addressed whether internal complaints are protected activity under the FLSA's retaliation provision, though we have reviewed two cases involving internal complaints without commenting on the matter.

See Scott v. Sunrise Healthcare Corp., 195 F.3d 938, 940-41 (7th Cir.1999) (affirming dismissal of FLSA retaliation case because plaintiff had not shown a causal connection between her complaints and her later discharge); see also Shea v. Galaxie Lumber Constr. Co., 152 F.3d 729, 731, 734-36 (7th Cir.1998) (reversing a denial of punitive damages in a case where an employee had been discharged after complaining to the company president).


Context: . In particular, we note that the district court correctly declined to establish a constructive trust on Appellants' behalf both because Appellants have not met the elements required by New York law for a constructive trust and because SS 853(i) provides a legal remedy which obviates the need for application of an equitable remedy.

See also Schwimmer, 968 F.2d at 1583 (in forfeiture proceedings, trust beneficiaries must trace property to that held in trust).

See Ribadeneira, 920 F.Supp. at 555-56, 21 U.S.C. § 853(i); United States v. Coluccio, 51 F.3d 337, 340 (2d Cir.1995) ("Generally, New York law requires that a person establish four elements before a court will impose a constructive trust: (1) a confidential or fiduciaty relationship; (2) a promise, express or implied; (3) a transfer of the subject res made in reliance on that promise; and (4) unjust enrichment.”) (citing In re Koreag, Controle et Revision, S.A., 961 F.2d 341, 352 (2d Cir.1992); Bankers Sec. Life Ins. Soc’y v. Shakerdge, 49 N.Y.2d 939, 428 N.Y.S.2d 623, 624, 406 N.E.2d 440, 440-41 (1980); Simonds v. Simonds, 45 N.Y.2d 233, 408 N.Y.S.2d 359, 363-64, 380 N.E.2d 189, 193-95 (1978)).


Context: We therefore determine that Gentry did not suffer prejudice at either phase as a result of Hicks's false testimony. At the guilt phase, the DNA, eyewitness, and other circumstantial evidence were more than sufficient for a jury to convict Gentry without considering the testimony of the jailhouse witnesses.

finding no Napue violation at the guilt phase as a result of false testimony because "[tjhere was simply too much evidence placing [the defendant] at the scene of the crime"

Sivak v. Hardison, 658 F.3d 898, 914 (9th Cir.2011) (finding no Napue violation at the guilt phase as a result of false testimony because “[tjhere was simply too much evidence placing [the defendant] at the scene of the crime”); see Strickler v. Greene, 527 U.S. 263, 292-93, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (finding no prejudice on a Brady claim because even ignoring the witness’s testimony, there was other evidence in the record to support the conviction on its own).

finding no prejudice on a Brady claim because even ignoring the witness's testimony, there was other evidence in the record to support the conviction on its own


Context: Although we have never addressed the precise issue of whether SS 406(b)(1)(A) authorizes an award of attorney's fees where the district court's judgment remanding the case to the Commissioner does not explicitly mention attorney's fees, we have noted that the congressional intent behind SS 406(b) is, in part, "to encourage effective legal representation of claimants by insuring lawyers that they will receive reasonable fees directly through certification by the Secretary."

holding that a district court may consider interim benefits received pursuant to 42 U.S.C. SS 423(g

See Shoemaker, 853 F.2d at 860-61 (holding that a district court may consider interim benefits received pursuant to 42 U.S.C. § 423(g) in awarding attorney’s fees under § 406(b)). Moreover, the Supreme Court has held that a remand from the district court to the SSA under sentence four of 42 U.S.C. § 405(g), as happened here, is a favorable judgment for the claimant.

holding that a district court may not authorize an attorney to charge fees for representation in Court when the Commissioner has already authorized that attorney to charge fees for representation in administrative proceedings, and declining to reach the Secretary's contention that SS 406(b

Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir.1970) (holding that a district court may not authorize an attorney to charge fees for representation in Court when the Commissioner has already authorized that attorney to charge fees for representation in administrative proceedings, and declining to reach the Secretary’s contention that § 406(b) does not allow a Court to authorize attorney’s fees unless it renders a judgment on the merits favorable to the claimant).


Context: . Even if Orozco had not waived this argument, the district court did not plainly err in sentencing him as an armed career criminal because his prior convictions for felony lascivious acts with a child constitute violent felonies under the ACCA and the sentencing guidelines.

See United States v. Rodriguez, 979 F.2d 138, 141 (8th Cir.1992) (holding that a conviction for a lascivious act with a child in violation of Iowa Code § 709.8 was a crime of violence); see also United States v. Eastin, 445 F.3d 1019, 1022 (8th Cir.2006) (noting that incestuous intercourse between an adult and a minor child is a violent felony under the ACCA).

holding that a conviction for a lascivious act with a child in violation of Iowa Code SS 709.8 was a crime of violence


Context: First, Hall had the opportunity to thoroughly cross-examine all of the eyewitnesses in order to cast doubt on their ability to identify him. As we have explained, any weaknesses in eyewitness identification testimony ordinarily can be exposed through careful cross-examination of the eyewitnesses.

concluding that expert testimony on eyewitness identification is properly excludable because the question of accuracy of perception and memory "can be adequately addressed in cross-examination and that the jury can adequately weigh these problems through common-sense evaluation"

See Larkin, 978 F.2d at 971 (excluding proffered expert testimony, in part, because defendant’s counsel had the opportunity at trial to discuss the potential hazards of eyewitness identification and cast doubt upon the witnesses’ eyewitness identifications); Curry, 977 F.2d at 1052 (concluding that “vigorous cross-examination by the defendants,” which revealed the weaknesses of the eyewitness identifications, made expert testimony on the identifications unnecessary); see also United States v. Thevis, 665 F.2d 616, 641 (5th Cir.1982) (concluding that expert testimony on eyewitness identification is properly excludable because the question of accuracy of perception and memory “can be adequately addressed in cross-examination and that the jury can adequately weigh these problems through common-sense evaluation”).

excluding proffered expert testimony, in part, because defendant's counsel had the opportunity at trial to discuss the potential hazards of eyewitness identification and cast doubt upon the witnesses' eyewitness identifications


concluding that "vigorous cross-examination by the defendants," which revealed the weaknesses of the eyewitness identifications, made expert testimony on the identifications unnecessary