Context: Because those claims and the facts supporting them exceed the scope of the allegations Tunnicliff filed with the MCAD and EEOC, he has failed to exhaust his administrative remedy with respect thereto.

finding that, in order to meet the procedural requirement of exhausting administrative remedies, "[e]ven a pro se complainant is required to describe the essential nature of the claim and to identify the core facts on which it rests"

See Johnson v. General Electric, 840 F.2d 132, 139 (1st Cir.1988) (dismissing retaliatory discharge claim for failure to exhaust administrative remedy); see also Lattimore, 99 F.3d at 464 (finding that, in order to meet the procedural requirement of exhausting administrative remedies, “[e]ven a pro se complainant is required to describe the essential nature of the claim and to identify the core facts on which it rests”).


Context: See Jury Instructions 9, 10 (Holseth's Answer Brief 4-5). "[A] party to a contract may not prevent performance of a condition and then claim the benefit of such condition."

Townsend v. Melody Home Mfg. Co., 541 P.2d 1370, 1374-75 (Okla.Ct.App.1975) (holding manufacturer of mobile homes could not deny dealer incentive bonus based on late payment when manufacturer was involved with finance company in delaying payment); see also Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987) (party to contract may not deliberately prevent condition and then take advantage of failure of condition to avoid liability).


Context: There is no caselaw in Minnesota holding that a suicide attempt constitutes a voluntary absence from trial. But the Eighth Circuit has held that a suicide attempt can constitute a voluntary absence.

United States v. St. James, 415 F.3d 800, 804-05 (8th Cir.2005) (holding that defendant who fled the state and then attempted suicide failed to show his absence from trial was involuntary); United States v. Crites, 176 F.3d 1096, 1098 (8th Cir.1999); see also United States v. Davis, 61 F.3d 291, 302-03 (5th Cir.1995) (concluding defendant who was hospitalized after attempting suicide during trial was voluntarily absent and waived right to be present at trial); but see United States v. Latham, 874 F.2d 852, 858-59 (1st Cir.1989) (concluding defendant did not voluntarily absent himself from trial after he ingested a potentially lethal overdose of cocaine to calm his nerves and without intent to commit suicide).


concluding defendant did not voluntarily absent himself from trial after he ingested a potentially lethal overdose of cocaine to calm his nerves and without intent to commit suicide


Context: P36 Until now, no jurisdiction had found the lack of a specific statute authorizing its attorney general to make press releases to be an impediment to a claim of absolute immunity in such circumstances.

"No statutory delineation of such responsibility is necessary, however, inasmuch as the Attorney General, as an elected officer of cabinet rank in state government, has an implicit duty by virtue of his position to inform the people of the state of Washington of actions taken in his official capacity."

See, e.g., Gold Seal Chinchillas, 420 P.2d at 701 (“No statutory delineation of such responsibility is necessary, however, inasmuch as the Attorney General, as an elected officer of cabinet rank in state government, has an implicit duty by virtue of his position to inform the people of the state of Washington of actions taken in his official capacity.”); see also Hultman v. Blumenthal, 67 Conn.App. 613, 787 A.2d 666, 674 (2002) (“The defendant was informing the public of an investigation duly conducted by his office and was carrying out the government policy of reporting to the public those facts that the attorney general claimed supported the allegations of medicaid fraud.”).

"The defendant was informing the public of an investigation duly conducted by his office and was carrying out the government policy of reporting to the public those facts that the attorney general claimed supported the allegations of medicaid fraud."


Context: Moreover, even if somehow erroneous, admission of such evidence was harmless.

" 'Even where we find that the district court has abused its discretion with respect to an evidentia ry ruling, we will not reverse the conviction if the error was harmless.' "

See Mack, 343 F.3d at 935 (“ ‘Even where we find that the district court has abused its discretion with respect to an evidentia ry ruling, we will not reverse the conviction if the error was harmless.’ ”) (quoting Oleson, 310 F.3d at 1091); see also United States v. Womack, 191 F.3d 879, 883 (8th Cir.1999) (admission of evidence pursuant to the “co-conspirator hearsay” exception is reviewed for abuse of discretion). This is so, because, in light of the entire record, Johnson’s substantial rights were unaffected, and the error did not influehce or had at most only a slight influence on the verdicts.

admission of evidence pursuant to the "co-conspirator hearsay" exception is reviewed for abuse of discretion


Context: Turning to more substantive issues, balancing the few isolated comments that Johnson challenges, including their nature and content, against the overall fairness of this very lengthy and complex trial, it is apparent that Johnson's rights were not adversely affected.

the court must balance the judge's comments against the overall fairness of the trial to determine whether the defendant's rights were adversely affect

See Goolsby, 209 F.3d at 1081 (the court must balance the judge’s comments against the overall fairness of the trial to determine whether the defendant’s rights were adversely affect); Coon, 187 F.3d at 897 (same); Van Dyke, 14 F.3d at 417-18; see also Alidani, 365 F.3d at 640 (“a few isolated and arguably improper comments” from a lengthy trial will not warrant relief); Coon, 187 F.3d at 897 (“snippets” of comments from a lengthy trial will not demonstrate a fundamentally unfair proceeding).

"a few isolated and arguably improper comments" from a lengthy trial will not warrant relief


"snippets" of comments from a lengthy trial will not demonstrate a fundamentally unfair proceeding


Context: When disputes have arisen regarding the division of authority among the three branches of government in the development and administration of the criminal laws, we have acted to prevent one branch from intruding upon the domain of another branch.

"[O]nce the legislature provides the court with the power to use sentencing discretion, the legislature cannot then limit the court's exercise of discretion by empowering the executive branch to review that discretion."

See, e.g., State v. Larson, 159 Ariz. 14, 17, 764 P.2d 749, 752 (App.1988) (trial court cannot intrude upon the prosecutor’s charging function by dismissing charges pursuant to misdemeanor compromise statute without the prosecutor’s statutorily-required recommendation); State v. Jones, 142 Ariz. 302, 305, 689 P.2d 561, 564 (App.1984) (holding that DUI sentencing statute that permitted the trial court to impose an alternative sentence “based upon the prosecutor’s recommendation” was unconstitutional in violation of Article 3 because “the decision to mitigate a sentence properly belongs to the judge and not the prosecutor”); see also State v. Prentiss, 163 Ariz. 81, 85, 786 P.2d 932, 936 (1989) (“[O]nce the legislature provides the court with the power to use sentencing discretion, the legislature cannot then limit the court’s exercise of discretion by empowering the executive branch to review that discretion.”).

trial court cannot intrude upon the prosecutor's charging function by dismissing charges pursuant to misdemeanor compromise statute without the prosecutor's statutorily-required recommendation


holding that DUI sentencing statute that permitted the trial court to impose an alternative sentence "based upon the prosecutor's recommendation" was unconstitutional in violation of Article 3 because "the decision to mitigate a sentence properly belongs to the judge and not the prosecutor"


Context: As the Trustee observes, the issue of rejection of the Epic Orange contract has been pending in this court since at least July 2004, and Epic was made party to the state foreclosure action in October 2004, yet Epic Orange did not raise the abstention issue until January 21, 2005, and did not make a separate motion until February 15, 2005. Under the circumstances, the Court agrees with the Trustee that the request for abstention is not timely.

See In re AHT Corp., 265 B.R. 379, 384 (Bankr.S.D.N.Y.2001) (defendants’ motion to abstain not timely when filed some 2-1/2 months after complaint and one day before defendants’ long-extended deadline to answer, and where defendants had already “utilized the substantive process” of court “on a matter going to the merits”); see also In re Waugh, 165 B.R. 450, 452 (Bankr.E.D.Ark.1994) (denying motion to abstain as untimely when filed nearly four months after complaint).

defendants' motion to abstain not timely when filed some 2-1/2 months after complaint and one day before defendants' long-extended deadline to answer, and where defendants had already "utilized the substantive process" of court "on a matter going to the merits"


Context: The response-time restrictions placed on plaintiff were not particularly severe; plaintiff received only between ten and twenty pages per year and the alarms sounded infrequently. Plaintiff also had a half hour to respond to notifications from the District.

Cf. Brigham, 357 F.3d at 938 (finding that the Owens factors weighted narrowly in favor of the employees were they were subject to the constant pressures of being absolutely prepared to respond to emergencies where the safety of thousands was at stake). Moreover, while plaintiff was required to live at the facility and was subject to geographic constraints, the undisputed evidence demonstrates that he engaged in a variety of personal pursuits including home improvement, construction projects, having visitors, watching television, and participating at the Masonic Lodge.

See Berry, 30 F.3d at 1184 (finding on-call time not compensable where employees required to remain in the county and to respond to calls within fifteen minutes); Owens, 971 F.2d at 349 (finding on-call time not com-pensable where employees required to reply within ten minutes of receiving a call or page). Further, while release of water from the Dam was important to prevent flooding, there is no evidence that plaintiffs duties put him in the position of being responsible for the safety of thousands of people and thus, required him to be both immediate and absolutely prepared in his responses.


finding on-call time not com-pensable where employees required to reply within ten minutes of receiving a call or page


Context: Applying the McDonnell Douglas framework, the plaintiff can establish a prima facie case of age discrimination by showing he was: (1) a member of the protected class; (2) qualified for his current position; (3) subject to adverse employment action; and (4) treated less favorable than any younger, similarly situated employee.

Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1457 (11th Cir.1997) (holding that replacement by someone outside the protected group is required to make a prima facie age discrimination case); see also O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996) (holding that being replaced by someone outside the protected class is not a proper element of the fourth prong because replacement by a substantially younger employee is a far more reliable indicator of age discrimination); Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir.2003) (holding that more favorable treatment of similarly situated employees outside the race classification is required to make a prima facie race discrimination case).


holding that more favorable treatment of similarly situated employees outside the race classification is required to make a prima facie race discrimination case


Context: Missouri inmate Neldon Neal appeals the district court's denial of his Fed. R.Civ.P. 60(b) motion for relief from judgment in his 42 U.S.C. SS 1983 action. Notwithstanding Neal's argument that he failed to litigate his case because he did not receive court documents during a nine-month stay in federal custody, we find no abuse of discretion in the court's denial of his Rule 60(b) motion because nothing in the record shows that Neal notified the court of his custody change or otherwise attempted to follow through with his case before he was returned to state custody.

See Murphy v. Mo. Dep’t of Corr., 506 F.3d 1111, 1117 (8th Cir.2007) (Rule 60(b)(6) relief is available only where exceptional circumstances have denied moving party full and fair opportunity to litigate claim and prevented moving party from receiving adequate redress); In re Guidant Corp. Implantable Defibrillators Prod. Liab. Litig., 496 F.3d 863, 866 (8th Cir.2007) (setting forth relevant factors for finding excusable neglect under Rule 60(b)); see also Broadway v. Nonis, 193 F.3d 987, 988-89 (8th Cir.1999) (applying abuse-of-diseretion review standard and noting that appeal of Rule 60(b) motion does not bring up for review underlying judgment or order).


Context: In explaining the law, the trial court should avoid instructions that are reasonably capable of confusing or misleading the jury. Although the "mere error of judgment" instruction may be a correct statement of the law, a growing number of courts have criticized similar instructions in recent years.

warning "error of judgment" instruction should be given in limited circumstances with caution

But see Watson v. Hockett, 727 P.2d 669, 673 (Wash. 1986) (warning “error of judgment” instruction should be given in limited circumstances with caution).

holding word "error" when used with "exercise of judgment" suggests substandard conduct permissible

See Rogers, 772 P.2d at 931 (holding word “error” when used with “exercise of judgment” suggests substandard conduct permissible); DiFranco v. Klein, 657 A.2d 145, 148-49 (R.I. 1995) (holding “good faith” and “honest error in judgment” instructions erroneously imply only bad-faith and dishonest deviations actionable); Deyo v. Kinley, 565 A.2d 1286, 1292-93 (Vt. 1989) (noting “error in judgment” language is basically ambiguous and subjective); Logan v. Greenwich Hosp. Ass’n, 465 A.2d 294, 303 (Conn. 1983) (noting “bona fide error in Judgment” instruction confusing because it implies only an error in judgment made in bad faith actionable); Ouellette by Ouellette v. Subak, 391 N.W.2d 810, 816 (Minn. 1986) (rejecting “honest error in judgment” instruction as inappropriately imposing subjective language when defining standard of care); Riggins v. Mauriello, 603 A.2d 827, 830-31 (Del. 1992) (holding “mere error of judgment” instruction permits jury to incorrectly conclude physician may not be liable even if negligent); Parodi v. Washoe Medical Ctr., 892 P.2d 588, 591 (Nev. 1995) (noting “error-in-judgment” instructions may improperly focus jury on subjective intentions rather than objective standard of care); Hirahara v. Tanaka, 959 P.2d 830, 834-35 (Haw. 1998) (rejecting use of “error in judgment” because language inadequately explains law).


holding "good faith" and "honest error in judgment" instructions erroneously imply only bad-faith and dishonest deviations actionable


noting "error in judgment" language is basically ambiguous and subjective


noting "bona fide error in Judgment" instruction confusing because it implies only an error in judgment made in bad faith actionable


rejecting "honest error in judgment" instruction as inappropriately imposing subjective language when defining standard of care


holding "mere error of judgment" instruction permits jury to incorrectly conclude physician may not be liable even if negligent


noting "error-in-judgment" instructions may improperly focus jury on subjective intentions rather than objective standard of care


rejecting use of "error in judgment" because language inadequately explains law


Context: Plaintiff here contends that strict scrutiny applies because Defendants' actions infringe on First Amendment rights. However, because the Court has already determined that Plaintiff does not have a meritorious Free Speech or Establishment Clause claim, his Equal Protection claim is subject only to rational basis scrutiny.

"Since we hold that the Act does not violate appellee's right of free exercise of religion, we have no occasion to apply to the challenged classification a standard of scrutiny stricter than the traditional rational-basis test"

See Teen Ranch v. Udow, 389 F.Supp.2d 827, 841 (W.D.Mich.2005), aff'd 479 F.3d 403 (6th Cir.), cert. denied, 552 U.S. 1039, 128 S.Ct. 653, 169 L.Ed.2d 510 (2007); Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 231 (2d Cir.1996) (where the plaintiffs have failed to show a violation of the First Amendment, strict scrutiny is inapplicable and the challenged statute is evaluated under rational basis review); see also Johnson v. Robison, 415 U.S. 361, 375 n. 14, 94 S.Ct. 1160, 1170 n. 14, 39 L.Ed.2d 389 (1974) (“Since we hold that the Act does not violate appellee’s right of free exercise of religion, we have no occasion to apply to the challenged classification a standard of scrutiny stricter than the traditional rational-basis test”); Locke v. Davey, 540 U.S. 712, 721 n. 3, 124 S.Ct. 1307, 1313 n. 3, 158 L.Ed.2d 1 (2004) (where a plaintiffs First Amendment Free Exercise claim has failed, only rational basis scrutiny applies in subsequent review of an equal protection fundamental right to religious free exercise claim based on the same facts); Wirzburger v. Galvin, 412 F.3d 271, 282-83 (1st Cir.2005), cert. denied, 546 U.S. 1150, 126 S.Ct. 1165, 163 L.Ed.2d 1128 (2006) (same).


where a plaintiffs First Amendment Free Exercise claim has failed, only rational basis scrutiny applies in subsequent review of an equal protection fundamental right to religious free exercise claim based on the same facts


Context: [P 11] In North Dakota the doctrine of an implied covenant of good faith and fair dealing has only been applied to insurance contracts.

See Fetch v. Quam, 2001 ND 48, ¶ 12, 623 N.W.2d 357 (“An insurer has a duty to act fairly and in good faith in its contractual relationship with its policyholders.”); see also Barnes v. St Joseph’s Hospital, 1999 ND 204, ¶ 10, 601 N.W.2d 587 (affirmed the dismissal of an implied covenant of good faith and fair dealing claim in connection with a commercial contract because the plaintiff failed to raise an issue of material fact that the defendant acted in bad faith); Jose v. Norwest Bank, 1999 ND 175, ¶ 14, 599 N.W.2d 293 (declined the invitation to apply an implied covenant of good faith and fair dealing into the employment context); Aaland v. Lake Region Grain Coop., 511 N.W.2d 244, 247 (N.D.1994) (declined to recognize a claim based on an implied covenant of good faith and fair dealing); Hillesland v. Federal Land Bank Ass’n, 407 N.W.2d 206, 211-15 (N.D.1987) (rejected a claim for a breach of an implied covenant of good faith and fair dealing based on an at-will employment contract).

"An insurer has a duty to act fairly and in good faith in its contractual relationship with its policyholders."


declined the invitation to apply an implied covenant of good faith and fair dealing into the employment context


declined to recognize a claim based on an implied covenant of good faith and fair dealing


rejected a claim for a breach of an implied covenant of good faith and fair dealing based on an at-will employment contract


Context: A preemption decision would shield Blue Cross from liability and leave the Hospice without recourse. We are aware that preemption normally is not dependent upon the availability of ERISA remedies.

"[T]he availability of a federal remedy is not a prerequisite for federal preemption."

See Pilot Life Ins. Co., 481 U.S. at 54, 107 S.Ct. at 1556; Lister v. Stark, 890 F.2d 941, 946 (7th Cir.1989) (“[T]he availability of a federal remedy is not a prerequisite for federal preemption.”), cert. denied, — U.S. -, 111 S.Ct. 579, 112 L.Ed.2d 584 (1990); but see Perry v. P*I*E Nationwide Inc., 872 F.2d 157, 162 (6th Cir.1989) (preemption only applies where Congress has provided an adequate remedy), cert. denied, 493 U.S. 1093, 110 S.Ct. 1166, 107 L.Ed.2d 1068 (1990).


Context: This court recently declined to extend the ADA to encompass failure to train liability in similar circumstances.

"Title II [of the ADA] does not apply to an officer's on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life."

See Sanders v. City of Minneapolis, 474 F.3d 523, 527 (8th Cir.2007) (“It was not the City’s failure to train its officers, but [the deceased’s] apparent attempt to run over the officers that precipitated the shooting.”); see also Hainze v. Richards, 207 F.3d 795, 801 (5th Cir.2000) (“Title II [of the ADA] does not apply to an officer’s on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer’s securing the scene and ensuring that there is no threat to human life.”).

"It was not the City's failure to train its officers, but [the deceased's] apparent attempt to run over the officers that precipitated the shooting."


But see Schorr v. Borough of Lemoyne, 243 F.Supp.2d 232 (M.D.Pa.2003) (relying on the statutory history and remedial nature of the ADA to permit plaintiff to state claim under the ADA for failure to train police and modify police practices to accommodate for mentally ill subjects of involuntary commitment warrants).


Context: On a motion to dismiss, courts may take judicial notice .of docket sheets and filings in other cases in determining when a claim accrued. See, e.g., Staehr v. Hartford Fin. Servs.

"docket sheets are public records of which the court could take judicial notice"

Grp., 547 F.3d 406, 425 (2d Cir.2008) (stating that, on a motion to dismiss, “it is proper to take judicial notice of the fact that press coverage, prior lawsuits, or regulatory filings contained certain information, without regard to the truth of their contents” to determine when “inquiry notice” was triggered for statute of limitations purposes in a securities case); see also Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.2006) (“docket sheets are public records of which the court could take judicial notice”).

stating that, on a motion to dismiss, "it is proper to take judicial notice of the fact that press coverage, prior lawsuits, or regulatory filings contained certain information, without regard to the truth of their contents" to determine when "inquiry notice" was triggered for statute of limitations purposes in a securities case


Context: Although we have never addressed the precise question of the cap's applicability to an award of nominal damages, several other circuits have. The First and Eighth Circuits have both concluded that the fee cap applies to nominal damage awards.

nominal damage award is "a monetary judgment" under SS 1997e(d

See Boivin v. Black, 225 F.3d 36, 40-41 (1st Cir.2000) (nominal damage award is “a monetary judgment” under § 1997e(d) and fee cap applies); Foulk v. Charrier, 262 F.3d 687, 703-04 (8th Cir.2001) (same); see also Walker v. Bain, 257 F.3d 660, 667 (6th Cir.2001) (limiting attorney’s fees to 150% of money judgment that included nominal and punitive damages).

limiting attorney's fees to 150% of money judgment that included nominal and punitive damages


Context: Slander, which is defamation by spoken words, also may be actionable per se under certain circumstances. For instance, spoken words that injure a plaintiff in his or her profession or trade may constitute slander per se.

See, e.g., Wheeler v. Green, 286 Or 99,124, 593 P2d 777 (1979) (where defendant accuses plaintiff of misconduct or dishonesty in performance of plaintiffs profession or employment, matter is “actionable without proof of specific harm”); see also Barnett v. Phelps, 97 Or 242, 244-45, 191 P 502 (1920) (discussing classes of spoken words that are actionable per se).

where defendant accuses plaintiff of misconduct or dishonesty in performance of plaintiffs profession or employment, matter is "actionable without proof of specific harm"


Context: . A number of jurisdictions have held that the failure by the court to advise a person who pleads guilty to a sexual offense that is specified in a sex offender registration statute does not provide grounds for allowing withdrawal of the plea. On the other hand, other jurisdictions either judicially or legislatively require pre-plea advisement in all sex offender registration cases.

See also State v. Bremer, 562 N.W.2d 565 (N.D.1997) (trial court must advise person pleading to sex offense of registration requirement), overruled on other grounds, State v. Burr, 598 N.W.2d 147 (N.D.1999).

See Whitehead v. State, 985 P.2d 1019 (Alaska App. 1999) (Alaska Rules of Criminal Procedure require judges to advise defendants about sex offender registration before accepting a guilty plea to a sex offense).


See also Ducker v. State, 45 S.W.3d 791 (Ct.App.2001) (Tex.Code of Criminal Procedure requires court before accepting guilty plea to advise defendant of sex offender registration requirement); Shankle v. State, 59 S.W.3d 756 (Ct.App.2001) (sex offender registration was a collateral and not direct consequence of guilty plea to a specific sexual offense; however, it is a serious consequence, and failure of trial court to follow statutory advisement directive entitled defendant to withdraw plea).


Context: The circuit court correctly noted that sliding is an integral and well known part of softball and baseball. Though there is no direct Maryland authority recognizing that fielders and base runners assume some risk of being injured in a tag-out and slide, there is ample persuasive authority for this common sense proposition.

minor plaintiff who was aware that "[sjliding into base is an integral part of the game of softball" assumed the risk of sliding injury

See, e.g., Martino v. Vonnes, 298 A.D.2d 505, 748 N.Y.S.2d 512 (2002)(experienced second baseman injured when defendant slid into him “assumed the risk that he might be injured by a sliding opposing player”); Picou v. Hartford Ins. Co., 558 So.2d 787, 790-91 (La.Ct.App.1990)(same); cf. Totino v. Nassau County Council of Boy Scouts, 213 A.D.2d 710, 625 N.Y.S.2d 51, 52, cert. denied, 86 N.Y.2d 708, 634 N.Y.S.2d 442, 658 N.E.2d 220 (1995)(minor plaintiff who was aware that “[sjliding into base is an integral part of the game of softball” assumed the risk of sliding injury).

experienced second baseman injured when defendant slid into him "assumed the risk that he might be injured by a sliding opposing player"


Context: The courts have recognized the importance of a preference reduction in section 58(h).

"Standing alone -- that is, without section 58(h) -- section 56(a) would impose minimum tax on tax-preference items even though the items never conferred a tax benefit on the taxpayer."

See id. at 669 (section 58(h) “reflected a congressional concern to avoid imposition of the minimum tax on preferences in situations where the preferences did not produce tax benefits”), aff'd. 842 F.2d at 181 (“Standing alone — that is, without section 58(h) — section 56(a) would impose minimum tax on tax-preference items even though the items never conferred a tax benefit on the taxpayer.”); Occidental Petroleum Corp. v. Commissioner, 82 T.C. at 824 (“Plainly, in enacting section 58(h), Congress was concerned about not imposing the minimum tax on tax preferences where such tax preferences did not result in a tax benefit.”); see also Occidental Petroleum Corp. v. United States, 231 Ct. Cl. 334, 685 F.2d 1346 (1982) (taxpayer liable for minimum tax for years in which nonbeneficial preferences arose, which preceded enactment of section 58(h)).


Context: Under Title VII, contractual administrative remedies do not have to be exhausted in order to bring a judicial action.

See Donaldson, 620 F.2d at 158; Sprogis v. United Air Lines, 517 F.2d 387, 390 (7th Cir.1975) (plaintiff may forego settlement agreement between her bargaining representative and her former employer to file Title VII action); Waters, 502 F.2d at 1316; see also Alexander v. Gardner-Denver Co., 415 U.S. 36, 49, 94 S.Ct. 1011, 1020, 39 L.Ed.2d 147 (1974) (individual does not forfeit his private cause of action under Title VII if he first pursues his grievance to final arbitration under a collective-bargaining agreement).


Context: An employer should not automatically be held hable for the discriminatory motivation of a subordinate employee that leads to an adverse employment action for another employee. However, if the formal deci-sionmakers choose to act in accordance with a report, decision, or recommendation of a biased subordinate without independently evaluating the aggrieved employee's situation, the imposition of liability may be appropriate. If such claims are accepted at face value, the subordinate's discriminatory statements and actions may then be fairly imputed to the formal decisionmak-ers and, by virtue of them, to the employer.

noting that "[statements of non decision makers become relevant ... when the ultimate decision maker's action is merely a 'rubber stamp' for the subordinate's recommendation"

See e.g., Rios, 252 F.3d at 382 (noting that “[statements of non decision makers become relevant ... when the ultimate decision maker’s action is merely a ‘rubber stamp’ for the subordinate’s recommendation”); Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir.2000) (recognizing case law holding that an employer “may be held liable if the manager who discharged the [employee] merely acted as a rubber stamp, or the ‘cat’s paw,’ for a subordinate employee’s prejudice, even if the manager lacked discriminatory intent”); Willis v. Marion County Auditor’s Office, 118 F.3d 542, 547 (7th Cir.1997) (noting that “there can be situations in which the forbidden motive of a subordinate employee can be imputed to the employer because, under the circum stances of the case, the employer simply acted as the ‘cat’s paw" of the subordinate”); cf. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (recognizing that the “cat’s paw” doctrine has been employed by lower courts to impose liability upon an employer for the discriminatory motivations of nondecisionmakers).

recognizing that the "cat's paw" doctrine has been employed by lower courts to impose liability upon an employer for the discriminatory motivations of nondecisionmakers


recognizing case law holding that an employer "may be held liable if the manager who discharged the [employee] merely acted as a rubber stamp, or the 'cat's paw,' for a subordinate employee's prejudice, even if the manager lacked discriminatory intent"


noting that "there can be situations in which the forbidden motive of a subordinate employee can be imputed to the employer because, under the circum stances of the case, the employer simply acted as the 'cat's paw" of the subordinate"


Context: The reasonable possibility inquiry governing the district court's determination is similar to that made in determining whether a trial error of constitutional dimension is harmless: that is, whether the error is harmless beyond a reasonable doubt.

See Coleman v. Burnett, 477 F.2d 1187, 1211 n. 158 (D.C.Cir.1973) (noting that “[i]n Chapman it was held that before a federal constitutional error can be held ‘harmless,’ the court must be of the belief that it was harmless beyond a reasonable doubt [and] must find that there is no reasonable possibility that the error complained of might have contributed to the conviction”) (citing Chapman v. California, 386 U.S. 18, 24, 87 5.Ct. 824, 17 L.Ed.2d 705 (1967), overruled in part by Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)) (emphasis added); United States v. Saro, 24 F.3d 283, 287 (D.C.Cir.1994) (“For most constitutional errors, an appellate court is to reverse if it entertains a ‘reasonable doubt’ about whether the error affected the outcome below.”); see also Pyles v. Johnson, 136 F.3d 986, 994 (5th Cir.1998) (equating reasonable possibility determination regarding extrinsic evidence in jury room to harmless error review).

"For most constitutional errors, an appellate court is to reverse if it entertains a 'reasonable doubt' about whether the error affected the outcome below."


Context: The Court need not reach the merits of defendants' qualified immunity defense with respect to plaintiffs' section 1983 claims, because they fail to state a claim under that provision.

Because appellants failed to show deprivation of rights under section 1983, "it is not necessary ... to decide ... question [of] immunity"

See also Martinez v. California, 444 U.S. 277, 284, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) (Because appellants failed to show deprivation of rights under section 1983, “it is not necessary ... to decide ... question [of] immunity”).

no need to consider immunity defense where plaintiff failed to establish constitutional violation, stating that "[t]his [is] the desirab[le] ... approach"

See Siegert, 500 U.S. at 233 (no need to consider immunity defense where plaintiff failed to establish constitutional violation, stating that “[t]his [is] the desirab[le] ... approach”).


Context: In the rare cases where we have found an abuse of discretion in a district court's refusal to grant an extension of time, our analysis has been highly fact-specific. We have granted relief when the appealing litigant was reasonably surprised by the deadline or the action of the court, or the events leading to the contested decision were unfair.

reversing grant of summary judgment where non-moving party's delay was attributable to "an ambiguity in the Local Rules" and a snafu in the district court clerk's office

See United States v. Fraya, 145 F.3d 1, 4 (1st Cir.1998) (reversing grant of summary judgment where non-moving party’s delay was attributable to “an ambiguity in the Local Rules” and a snafu in the district court clerk’s office); United States v. Roberts, 978 F.2d 17, 20-21 (1st Cir.1992) (overturning grant of motion to suppress when government’s failure to respond was due to “interlocking rules ... freighted with ambiguity”); see also Douglas v. York County, 360 F.3d 286, 290-91 (1st Cir.2004) (holding that it was “simply unfair— and an abuse of discretion” for district court to deny non-moving party’s motion for reconsideration of summary judgment after the court had “switched the basic issue without giving the parties adequate warning”); Resolution Trust Corp. v. North Bridge Assoc., Inc., 22 F.3d 1198, 1200, 1209 (1st Cir.1994) (reversing grant of summary judgment when non-moving party was “laid low” by the moving party’s “rabbit punch,” and “the district court should not have countenanced, much less rewarded, such dubious conduct”); Mendez, 900 F.2d at 7 (declining to overrule district court’s refusal to extend time in part because “the lawyer had no valid basis to claim he was surprised” by the filing deadline).

holding that it was "simply unfair-- and an abuse of discretion" for district court to deny non-moving party's motion for reconsideration of summary judgment after the court had "switched the basic issue without giving the parties adequate warning"


reversing grant of summary judgment when non-moving party was "laid low" by the moving party's "rabbit punch," and "the district court should not have countenanced, much less rewarded, such dubious conduct"


declining to overrule district court's refusal to extend time in part because "the lawyer had no valid basis to claim he was surprised" by the filing deadline


overturning grant of motion to suppress when government's failure to respond was due to "interlocking rules ... freighted with ambiguity"


Context: We note that our decision is consistent with the law in at least three other circuits.

prosecutor's obtaining of more severe indictment after defendant refused to cooperate with police did not arise out of prosecutorial vindictiveness because a defendant does not have a right to refuse to cooperate with authorities

See United States v. Long, 823 F.2d 1209, 1211 (7th Cir.1987) (prosecutor’s obtaining of more severe indictment after defendant refused to cooperate with police did not arise out of prosecutorial vindictiveness because a defendant does not have a right to refuse to cooperate with authorities); United States v. Oliver, 787 F.2d 124, 125-26 (3d Cir.1986) (no prosecutorial vindictiveness where federal charges were brought because defendant failed to cooperate satisfactorily with local authorities); see also United States v. Gardner, 611 F.2d 770, 773 (9th Cir.1980) (government’s decision to seek more severe indictment after defendant rejected offer to plead guilty to initial charges and to cooperate with police did not amount to vindictiveness because defendant was free to accept or reject the proposed offer).

government's decision to seek more severe indictment after defendant rejected offer to plead guilty to initial charges and to cooperate with police did not amount to vindictiveness because defendant was free to accept or reject the proposed offer


no prosecutorial vindictiveness where federal charges were brought because defendant failed to cooperate satisfactorily with local authorities


Context: Unless the statutes fall under one of those circumstances, courts must apply the presumption against reading an implied repeal into the second statute. The presumption against implied repeals is even stronger when the two laws are passed during the same legislative session.

rejecting an implied repeal where "the same Congress" had "not affirmatively evince[d] any intent to repeal or amend" the original statute, and enacted a second statute only one year later

See Traynor, 485 U.S. at 547, 108 S.Ct. 1372 (rejecting an implied repeal where “the same Congress” had “not affirmatively evince[d] any intent to repeal or amend” the original statute, and enacted a second statute only one year later); see also Washington Cnty. v. Gunther, 452 U.S. 161, 188, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981) (“It defies common sense to believe that the same Congress ... intended sub silentio ... to abandon the limitations of the equal work approach just one year later, when it enacted Title VIL” (Rehnquist, J., dissenting)); Pullen v. Morgenthau, 73 F.2d 281, 283 (2d Cir.1934) (“Where both laws are passed at the same session, the presumption against implied repeal is all the stronger.”).

"Where both laws are passed at the same session, the presumption against implied repeal is all the stronger."


Context: The contemporaneous objection rule, that the failure contemporaneously to assert a right constitutes a waiver of that right, applies to a criminal defendant's right to be present under Rule 43.

under contemporaneous objection rule, a party must object contemporaneously "to any matter believed to be erroneous, at peril of relinquishing the opportunity to challenge that matter on appeal"

Gagnon, 470 U.S. at 529, 105 S.Ct. at 1486; United States v. Brown, 923 F.2d at 112 (failure to assert right under Rule 43 constitutes waiver); United States v. Doe, 964 F.2d 157, 159 (2d Cir.) (“waiver by counsel of a defendant’s right to be present during the proceedings is valid when made in the presence of the defendant”), cert. denied, — U.S. -, 113 S.Ct. 628, 121 L.Ed.2d 560 (1992); cf. Government of Virgin Islands v. Williams, 892 F.2d 305, 309 (3d Cir.1989) (under contemporaneous objection rule, a party must object contemporaneously “to any matter believed to be erroneous, at peril of relinquishing the opportunity to challenge that matter on appeal”), cert. denied, 495 U.S. 949, 110 S.Ct. 2211, 109 L.Ed.2d 537 (1990).

"waiver by counsel of a defendant's right to be present during the proceedings is valid when made in the presence of the defendant"


Context: Obligations arising under output and requirements contracts are also routinely subjected to good faith limitations because the buyer and seller have "some discretion" to determine their requirements and outputs.

"courts will imply a promise that the buyer's requirements be in good faith"

E. Farnsworth, Contracts § 7.17, at 528 (1982); see Kansas Power & Light Co. v. Burlington Northern R.R. Co., 740 F.2d 780, 789 (10th Cir.1984), cert dismissed, 469 U.S. 1200, 105 S.Ct. 1155, 84 L.Ed.2d 308 (1985) (“courts will imply a promise that the buyer’s requirements be in good faith”); Southwest Natural Gas Co. v. Oklahoma Portland Cement Co., 102 F.2d 630, 632-33 (10th Cir.1939) (“Requirements contract imposes upon the buyer the obligation to act in good faith”); see also Lambert Corp. v. Evans, 575 F.2d 132, 137-38 (7th Cir.1978) (provision that buyer agreed to “pay as used” for seller’s inventory did not require buyer to use all inventory, but it did imply an obligation of good faith to use inventory amounts dictated by “business judgment” and not merely “to avoid contractual obligations”); HML Corp. v. General Foods Corp., 365 F.2d 77, 81 (3d Cir.1966) (“buyer in a requirements contract is required merely to exercise good faith in determining his requir ements”).

provision that buyer agreed to "pay as used" for seller's inventory did not require buyer to use all inventory, but it did imply an obligation of good faith to use inventory amounts dictated by "business judgment" and not merely "to avoid contractual obligations"


"buyer in a requirements contract is required merely to exercise good faith in determining his requir ements"


"Requirements contract imposes upon the buyer the obligation to act in good faith"


Context: A party to a contract cannot tortiously interfere with her own contract. See, e.g., Cedar Hills Props.

"While an agent may be held personally liable for his or her tortious acts, even if committed within the scope of the agent's employment with the principal, an agent is not liable for tortious interference with a contract of which his or her principal is a party."

Corp. v. E. Fed. Corp., 575 So.2d 673, 676-77 (Fla. 1st DCA 1991) (holding that leasing agent “acting within his capacity and scope as an agent, cannot be considered to be a separate entity outside of the contractual relationship which can tortiously interfere with that relationship”); see also Richard Bertram, Inc. v. Sterling Bank & Trust, 820 So.2d 963, 965 (Fla. 4th DCA 2002) (“While an agent may be held personally liable for his or her tortious acts, even if committed within the scope of the agent’s employment with the principal, an agent is not liable for tortious interference with a contract of which his or her principal is a party.”) (citations omitted); Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So.2d 381, 386 (Fla. 4th DCA 1999) (“For the interference to be unjustified, the defendant must be a third party, external to the business relationship” or an agent who “acts solely with ulterior purposes, without an honest belief that his actions would benefit the employer, and the employee’s conduct concerning the contract or business relationship is not in the employer’s best interest.”); Babson Bros. Co. v. Allison, 337 So.2d 848 (Fla. 1st DCA 1976) (holding that employee of one family-owned corporation who was assigned to terminate a contract of another corporation owned by the same family could not, as a matter of law, be held liable for tortious interference with the contract).

holding that leasing agent "acting within his capacity and scope as an agent, cannot be considered to be a separate entity outside of the contractual relationship which can tortiously interfere with that relationship"


"For the interference to be unjustified, the defendant must be a third party, external to the business relationship" or an agent who "acts solely with ulterior purposes, without an honest belief that his actions would benefit the employer, and the employee's conduct concerning the contract or business relationship is not in the employer's best interest."


holding that employee of one family-owned corporation who was assigned to terminate a contract of another corporation owned by the same family could not, as a matter of law, be held liable for tortious interference with the contract


Context: Congress has unmistakably preempted certain state law claims pertaining to medical devices. Congress enacted this express preemption clause to prevent manufacturers from being subject to inconsistent laws and regulations.

explaining that without the FDA's central oversight, juries would "apply the tort law of 50 States to all innovations," thus subjecting medical device manufacturers to the whims of juries in all 50 states

See Riegel, 552 U.S. at 326, 128 S.Ct. 999 (explaining that without the FDA’s central oversight, juries would “apply the tort law of 50 States to all innovations,” thus subjecting medical device manufacturers to the whims of juries in all 50 states); see also Gavin v. Medtronic, Inc., 2013 WL 3791612, at *4 (E.D.La. July 19, 2013) (noting that express preemption “preserve[s] federal regulatory authority over medical devices and thereby enable[s] the FDA to balance various statutory objectives”).

noting that express preemption "preserve[s] federal regulatory authority over medical devices and thereby enable[s] the FDA to balance various statutory objectives"


Context: What Arsenault's argument actually amounts to is faulting the judge for "not assigning] the weight to certain factors that [he] thought appropriate" and not taking into account specific considerations -- such as the elderly-prisoner problem -- which he finds relevant.

concluding that the district judge's silence about a sentencing angle advocated by a party did not undercut the sentencing decision where the record "evinc[ed] a sufficient weighing of the section 3553(a) factors"

See United States v. Rossignol, 780 F.3d 475, 479 (1st Cir. 2015) (“That the [appellant] would prefer an alternative weighing of the circumstances does not undermine the district court’s sentencing decision.”); see also United States v. Dávila-González, 595 F.3d 42, 49 (1st Cir. 2010) (concluding that the district judge’s silence about a sentencing angle advocated by a party did not undercut the sentencing decision where the record “evinc[ed] a sufficient weighing of the section 3553(a) factors”).

"That the [appellant] would prefer an alternative weighing of the circumstances does not undermine the district court's sentencing decision."


Context: P 10 The State contends, and Hansen concedes, that if A.R.S. SS 13-804.D is substantive, it indisputably governs.

"Within constitutional limits, the legislature is vested with plenary power to change the substantive law prospectively ____"

See State v. Murray, 194 Ariz. 373, 375 ¶6, 982 P.2d 1287, 1289 (1999) (“Within constitutional limits, the legislature is vested with plenary power to change the substantive law prospectively ____”); see also Brown, 194 Ariz. at 342 ¶ 5, 982 P.2d at 817 (“In Arizona, the legislature is endowed with the legislative power of the State, and has plenary power to consider any subject within the scope of government unless the provisions of the Constitution restrain it.”).

"In Arizona, the legislature is endowed with the legislative power of the State, and has plenary power to consider any subject within the scope of government unless the provisions of the Constitution restrain it."


Context: T 18 Plaintiffs have not alleged the type of truly extraordinary cireumstances that might allow equitable tolling.

CJL Hanger v. Abbott, 73 U.S. 582, 584, 6 Wall. 582, 18 L.Ed. 989 (1867) (extraordinary cireumstances prevent ed the plaintiff from timely filing action where courts in southern states were closed during the Civil War); Seattle Audubon Soc'y. v. Robertson, 981 F.2d 590, 596-97 (Oth Cir.1991) (equitable tolling appropriate where district court's erroneous enforcement of an unconstitutional statute barred the plaintiff from timely filing claims), rev'd on other grounds, 503 U.S. 429, 112 S.Ct. 1407, 118 L.Ed.2d 78 (1992); Osbourne v. United States, 164 F.2d 767, 768-69 (2d Cir.1947) (extraordinary circumstances found where the plaintiff could not file suit within limitations period because he was held prisoner by Japan during World War II); see also Brod-eur v. Am. Home Assurance Co., 169 P.8d 139, 150 n. 12 (Colo.2007) (discussing cases involving facts "where the plaintiff was truly precluded from bringing a claim by circumstances outside his or her control"); Dean Witter Reynolds, 911 P.2d at 1097 (the reasoning underlying equitable tolling decisions is "that it is unfair to penalize the plaintiff for cireumstances outside his or her control, so long as the plaintiff makes good faith efforts to pursue the claims when possible").


equitable tolling appropriate where district court's erroneous enforcement of an unconstitutional statute barred the plaintiff from timely filing claims


extraordinary circumstances found where the plaintiff could not file suit within limitations period because he was held prisoner by Japan during World War II


Context: Because we conclude that section 609.74(1) does not reach appellants' conduct, we need not consider their other arguments under the U.S. Constitution.

"[W]e do not reach constitutional issues if the matter can be resolved otherwise."

See State v. Wyatt, 361 N.W.2d 839, 840 (Minn.1985) (“Having disposed of this case on a factual basis, we need not consider the constitutional challenge.”); see also State ex. rel. Humphrey v. Philip Morris USA, Inc., 713 N.W.2d 350, 355 (Minn. 2006) (“[W]e do not reach constitutional issues if the matter can be resolved otherwise.”).

"Having disposed of this case on a factual basis, we need not consider the constitutional challenge."


Context: We agree with the Seventh Circuit that, "[although an employee's status as a policymaker bears considerable attention when weighing the interests of the government, the policymaking employee exception does not apply and courts must apply Pickering balancing when the speech at issue does not implicate the employee's politics or substantive policy viewpoints."

"Although it is true that, consistent with the First Amendment, a policymaking employee may be discharged on the basis of political affiliation such as membership (or lack of membership

Bonds v. Milwaukee County, 207 F.3d 969, 979 (7th Cir.2000); see also Lewis v. Cowen, 165 F.3d 154, 162 (2d Cir.) (“Although it is true that, consistent with the First Amendment, a policymaking employee may be discharged on the basis of political affiliation such as membership (or lack of membership) in a particular political party, that same employee may not be discharged on the basis of specific speech on matters of public concern unless the Pickering balancing test favors the government employer.”), cert. denied, — U.S. —, 120 S.Ct. 70, 145 L.Ed.2d 60 (1999); but see, Fazio v. City & County of San Francisco, 125 F.3d 1328, 1334 (9th Cir.1997) (“Because we hold that [plaintiffs] position ... was a policymaking one, we do not address [plaintiffs] claim that under the Pickering balancing test his interest in free speech outweighs the [employer’s] interest in running an efficient office.”).

"Because we hold that [plaintiffs] position ... was a policymaking one, we do not address [plaintiffs] claim that under the Pickering balancing test his interest in free speech outweighs the [employer's] interest in running an efficient office."


Context: Additionally, our court has held that a transfer or reassignment can be the equivalent of a demotion, and thus constitute an adverse employment action.

"A job transfer that includes a shift change that involves changes in duties or compensation or can be objectively characterized as a demotion may be an 'adverse employment action'.... "

Id. at 613 (quoting Sharp v. City of Hous., 164 F.3d 923, 933 (5th Cir.1999)); Pegram, 361 F.3d at 283 (“[A]n employment transfer may qualify as an adverse employment action if the change makes the job objectively worse.” (internal quotation marks omitted)); Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 770 (5th Cir.2001) (“A job transfer that includes a shift change that involves changes in duties or compensation or can be objectively characterized as a demotion may be an ‘adverse employment action’.... ”); see, e.g., Sharp, 164 F.3d at 933 (“The jury could have viewed transferring from the elite Mounted Patrol to a teaching post at the Police Academy to be, objectively, a demotion.”); Forsyth v. City of Doll., 91 F.3d 769, 774 (5th Cir.1996) (recognizing as demotions the reassignment of two police officers from the Intelligence Unit to night patrol because the Intelligence Unit positions “were more prestigious, had better work ing hours, and were more interesting than night patrol” and “few officers voluntarily-transferred from the Intelligence Unit to night patrol and other officers had been so transferred as punishment”); Click v. Copeland, 970 F.2d 106, 110 (5th Cir.1992).

"The jury could have viewed transferring from the elite Mounted Patrol to a teaching post at the Police Academy to be, objectively, a demotion."


recognizing as demotions the reassignment of two police officers from the Intelligence Unit to night patrol because the Intelligence Unit positions "were more prestigious, had better work ing hours, and were more interesting than night patrol" and "few officers voluntarily-transferred from the Intelligence Unit to night patrol and other officers had been so transferred as punishment"


Context: Texas courts have consistently held that stock options acquired during marriage are a contingent property interest and a community asset subject to division upon divorce.

holding that employee spouse's accrued but un-vested retirement benefits are a contingent property interest and a community asset

Kline, 17 S.W.3d at 446; Bodin, 955 S.W.2d at 381; see also Cearley, 544 S.W.2d at 665-66 (holding that employee spouse’s accrued but un-vested retirement benefits are a contingent property interest and a community asset).

holding that employee spouses's interest in his company's profit sharing stock plan awarded for work done outside of marriage was spouse's separate property

But see Acosta v. Acosta, 836 S.W.2d 652, 654 (Tex.App.-El Paso 1992, no writ) (holding that stock plan to which employer and employee spouse both made contributions and whose value was dependent on length of employee spouse’s employment was a deferred compensation retirement plan); In re Marriage of Joiner, 755 S.W.2d 496, 498 (Tex.App.-Amarillo 1988, no writ) (holding that employee spouses’s interest in his company’s profit sharing stock plan awarded for work done outside of marriage was spouse’s separate property).


Context: I would adopt the third district's reasoning in its entirety. Thus, I would affirm the trial courts' denials of the appellants' motions for post-conviction relief.

See Gonzalez v. State, 101 So.3d 886, 888 (Fla. 1st DCA 2012) (agreeing with Geter, adopting its reasoning in its entirety, and holding that Miller should not be applied retroactively); but see Toye v. State, 133 So.3d 540, 547 (Fla. 2d DCA 2014) (concluding that Miller applies retroactively and certifying conflict with Geter and Gonzalez).


Context: Indeed, this testimony does not fall into either category of victim-related evidence. Troy testified regarding his thoughts at the time of the incident; he did not testify regarding the effect that the crime had had on his life or how the incident had affected him and his family.

"[T]he testimony in the present case did not involve testimony about how third persons were affected by the crime, nor was there any discussion about the character of the victim."

See Mathis v. State, 67 S.W.3d 918, 928 (Tex.Crim.App.2002) (“[T]he testimony in the present case did not involve testimony about how third persons were affected by the crime, nor was there any discussion about the character of the victim.”); see also Hayden, 296 S.W.3d at 553 (characterizing, in murder case, victim-impact evidence as “evidence of the effect the victim’s death has on other people”); Espinosa, 194 S.W.3d at 711 (“Relevant victim impact evidence may include the physical, psychological, or economic effects of a crime on the victim or the victim’s family.”).

characterizing, in murder case, victim-impact evidence as "evidence of the effect the victim's death has on other people"


"Relevant victim impact evidence may include the physical, psychological, or economic effects of a crime on the victim or the victim's family."


Context: New Jersey courts have held manufacturers strictly liable for products, despite another's subsequent substantial alterations, when those alterations were objectively foreseeable and likely to cause injury.

requiring a product to be "suitably safe after it has been ... foreseeably altered"

See Brown v. United States Stove Co., 98 N.J. 155, 484 A.2d 1234, 1239-41 (1984) (requiring a product to be “suitably safe after it has been ... foreseeably altered”); Soler v. Castmaster, 98 N.J. 137, 484 A.2d 1225, 1232 (1984); McDermott v. TENDUN Constructors, 211 N.J.Super. 196, 511 A.2d 690, 698-99 (1986); cf. Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982) (imposing liability for negligent failure to reasonably foresee intentional, willful, or criminal acts of third persons that proximately cause injuries).


Context: The district court held that, because this claim is foreclosed by clear precedent, the state court's rejection of it was not contrary to or an unreasonable application of federal law.

parole eligibility instruction required "only ... [in] instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison"

See Ramdass v. Angelone, 530 U.S. 156, 169, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000) (parole eligibility instruction required “only ... [in] instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison”); see also Elizalde v. Dretke, 362 F.3d 323, 332-33 (5th Cir.2004) (collecting cases holding that Constitution does not require Texas trial courts to instruct juries as to the meaning of life in prison because the defendant would not, if sentenced to life imprisonment, be ineligible for parole).


Context: To begin with, the remedies under RICO do not include setting aside a prior judgment or undermining its preclusive effect by a collateral attack. The circuits to consider the matter have rejected such relief.

See Hendrick v. H.E. Avent, 891 F.2d 583, 585-87 (5th Cir.1990) (collateral attack on judgment through RICO claim is barred by res judicata); Gekas v. Pipin (In re Met-LWood Corp.), 861 F.2d 1012, 1016 (7th Cir.1988) (“RICO is many things, but it is not an exception to res judicata.”); see also Gulf Petro Trading Co. v. Nigerian Nat’l Petroleum Corp., 512 F.3d 742, 747, 749-50 (5th Cir.2008) (RICO suit was impermissible collateral attack on foreign arbitration award); Regions Bank v. J.R. Oil Co., LLC, 387 F.3d 721, 731-32 (8th Cir.2004) (RICO claims by nonparty to bankruptcy action were impermissible collateral attack on bankruptcy judgment that was good against the world).


RICO claims by nonparty to bankruptcy action were impermissible collateral attack on bankruptcy judgment that was good against the world


"RICO is many things, but it is not an exception to res judicata."


Context: We find that Defendants' convictions for conspiracy to distribute heroin, in violation of 21 U.S.C. SSSS 841(b)(1)(C), 846, and conspiracy to defraud the United States or commit any offense against the United States (la, provide and possess contraband in prison), in violation of 18 U.S.C. SS 371, although both stemming from the same events, were not the same offense for double jeopardy purposes.

recognizing that a single conspiracy "can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause"

See Albernaz v. United States, 450 U.S. 333, 344 n. 3, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) (recognizing that a single conspiracy “can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause”); see also United States v. Holloway, 128 F.3d 1254, 1257-58 (8th Cir.1997) (holding that convictions under §§ 846 and 371 do not offend the Double Jeopardy Clause).

holding that convictions under SSSS 846 and 371 do not offend the Double Jeopardy Clause


Context: We cannot agree, however, that Dr. Lichtman's omission of General Assembly election data from his analysis undermines the validity of this methodology or the probativeness of his results.

See NAACP, 252 F.3d at 370 (“the exogenous character of elections does not render them nonpro-bative”); Solomon v. Liberty County Comm’rs, 221 F.3d 1218, 1227 (11th Cir.2000) (district court not required to consider endogenous elections more probative); Monroe v. Woodville, 881 F.2d 1327, 1330 (5th Cir.1989) (exogenous election data not per se irrelevant); see also Clark v. Calhoun County, 88 F.3d 1393, 1397 (5th Cir.1996) (based on statistical evidence from exogenous elections, court concludes that racially polarized voting exists).

"the exogenous character of elections does not render them nonpro-bative"


district court not required to consider endogenous elections more probative


Context: That the nonjusticiability of a claim may not be waived does not render justiciability a jurisdictional issue, and this court has been careful to distinguish between the two concepts.

"[W]e need not resolve the question of the district court's subject-matter jurisdiction ... before considering whether the complaint presents a nonjusticiable political question"

See, e.g., Joo v. Japan, 413 F.3d 45, 48 (2005) (“[W]e need not resolve the question of the district court’s subject-matter jurisdiction ... before considering whether the complaint presents a nonjusticiable political question”); Public Citizen v. U.S. Dist. Court, 486 F.3d 1342, 1347 (2007) (noting “a federal court may, in appropriate circumstances, dismiss a case on prudential grounds prior to establishing its jurisdiction” and applying the enrolled bill rule); In re Papandreou, 139 F.3d 247, 255 (D.C.Cir.1998) (“[Although subject-matter jurisdiction is special for many purposes ... a court [may instead] dismiss[ ] on other non-merits grounds such as forum non conveniens”); see also Tenet v. Doe, 544 U.S. 1, 6 n. 4, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005) (holding the Totten rule requiring dismissal on the ground of public policy, “like the abstention doctrine ... or the prudential standing doctrine, represents the sort of ‘threshold question’ we have recognized may be resolved before addressing jurisdiction”) (internal citation omitted).

holding the Totten rule requiring dismissal on the ground of public policy, "like the abstention doctrine ... or the prudential standing doctrine, represents the sort of 'threshold question' we have recognized may be resolved before addressing jurisdiction"


noting "a federal court may, in appropriate circumstances, dismiss a case on prudential grounds prior to establishing its jurisdiction" and applying the enrolled bill rule


"[Although subject-matter jurisdiction is special for many purposes ... a court [may instead] dismiss[ ] on other non-merits grounds such as forum non conveniens"


Context: Indeed, the importance of disclosure to the tribunal of potential mental disabilities is so central to the integrity of judicial determinations that it is well settled that even a private plaintiff has statutory and common-law obligations to come forward with information that the party against whom he seeks relief may be mentally disabled and therefore unable to adequately represent himself.

See Parras v. Ricciardi, 185 Misc.2d 209, 710 N.Y.S.2d 792, 795-97 (2000) (“It is the [landlord’s] obligation to bring the [tenant’s] possible mental incompeténcy to the Court’s attention .... ”); see also Oneida Nat’l Bank v. Unczur, 37 A.D.2d 480, 326 N.Y.S.2d 458, 461-62 (4th Dep’t 1971) (interpreting CPLR 1201 and CPLR 1203, guardian ad litem statutes, and holding that default could not be granted without appointment of guardian ad litem); cf. Fed.R.Civ.P. 55 (providing for entry of judgment by default where defendant “is not an infant or incompetent person”).

"It is the [landlord's] obligation to bring the [tenant's] possible mental incompetency to the Court's attention .... "


Context: Williamson and Assad both saw the defendant hand something to Kimball, and Williamson saw Kimball give the defendant money. Seconds later, Kimball dropped two pieces of crack cocaine.

similar testimony constituted reversible error because evidence of a drug transaction was "decidedly weaker than in Woods, [supra]"

Contrast Commonwealth v. Lovejoy, 39 Mass. App. Ct. at 931-932 (similar testimony constituted reversible error because evidence of a drug transaction was “decidedly weaker than in Woods, [supra]").

See Commonwealth v. Woods, 419 Mass. at 375-376; Commonwealth v. Barbosa, 421 Mass. 547, 554-555 (1995); Commonwealth v. Rivera, 425 Mass. 633, 645 (1997) (in each case, improper opinion testimony that the defendant had engaged in a drug transaction was rendered harmless by strong evidence that a drug transaction had occurred).


Context: Indeed, it has been observed by one court that "in the ten months following Riegel, courts across the country have applied Section 360k broadly, preempting all manner of claims from strict products liability and negligence ... to failure to warn and manufacturing-and-design defect."

Lemelle, 698 F.Supp.2d at 682-83 (noting that state law product liability claims are preempted by the MDA); In re Medtronic, Inc. Sprint Fidelis Leads Products Liability Litigation, 592 F.Supp.2d 1147, 1152 (D.Minn.2009) (collecting cases); see also Funk, 673 F.Supp.2d at 531 (dismissing claims for strict liability, negligence, and violations of the DTPA); Delaney, 2009 WL 564243, at *2-*7 (concluding that Plaintiffs claims for failure to warn, defective manufacture, defective design, negligence and recklessness, breach of warranties, and fraud were preempted because they imposed different or additional requirements upon the Trident System); Horowitz v. Stryker, 613 F.Supp.2d 271 (E.D.N.Y.2009) (holding that plaintiffs negligence, defective manufacturing, defective design, breach of warranty, and failure to warn claims were preempted by the MDA and FDCA (defined below)); but see Hofts v. Howmedica Osteonics Corp., 597 F.Supp.2d 830, 839-40 (S.D.Ind.2009) (holding that plaintiffs state claims were not preempted because defendant failed to show that these claims rested on standards other than those permitted by the FDA).


concluding that Plaintiffs claims for failure to warn, defective manufacture, defective design, negligence and recklessness, breach of warranties, and fraud were preempted because they imposed different or additional requirements upon the Trident System


holding that plaintiffs negligence, defective manufacturing, defective design, breach of warranty, and failure to warn claims were preempted by the MDA and FDCA (defined below


holding that plaintiffs state claims were not preempted because defendant failed to show that these claims rested on standards other than those permitted by the FDA


Context: While Horton's actions in continuing to smoke might be characterized as evidence supporting a conclusion of assumption of the risk, that doctrine is subsumed in our comparative fault doctrine. Whether the context is an "open and obvious" hazard or assumption of a known risk we have tended to rely upon comparative fault principles.

Discussing the application of our comparative fault doctrine in the context of "last clear chance".

See Tharp v. Bunge Corporation, 641 So.2d 20, 25 (Miss.1994) (Comparative fault applies where an unreasonably dangerous condition is open and obvious); See also Newman v. Missouri Pac. R. Co., 421 F.Supp. 488 (S.D.Miss.1976) aff'd in part and rev’d in part on other grounds, 545 F.2d 439, reh. den., 551 F.2d 863 (5th Cir.1977) (Discussing the application of our comparative fault doctrine in the context of “last clear chance”.).


Context: P 60. Other courts have reached similar conclusions in cases that involved alleged "parole interviews."

concluding that "no mere parole interview" occurred where parolee was immediately handcuffed after voluntarily appearing at parole office, accused of crimes for which he was not on parole, "there was no 'interview' or dialogue related to the conditions of his parole or parole violations," he was not told that he was not under arrest or that he was being handcuffed pursuant to routine policy, but was instead informed that he was being investigated for new crimes, and agents' interrogation and search of parolee's home "was unquestionably aimed at crimes for which he was not on parole"

See Commonwealth v. Cooley, 118 A.3d 370, 379-80 (Pa. 2015) (concluding that “no mere parole interview” occurred where parolee was immediately handcuffed after voluntarily appearing at parole office, accused of crimes for which he was not on parole, “there was no ‘interview’ or dialogue related to the conditions of his parole or parole violations,” he was not told that he was not under arrest or that he was being handcuffed pursuant to routine policy, but was instead informed that he was being investigated for new crimes, and agents’ interrogation and search of parolee’s home “was unquestionably aimed at crimes for which he was not on parole”); see also People v. Coleman, 2015 IL App (4th) 140730, 37 N.E.3d 360 (concluding that parolee was subject to custodial interrogation where parole officer was looking for parolee because of tips indicating parolee had committed new crime, parolee was separated from other people in house, parole agents were armed and parolee was required to cooperate, and parolee was handcuffed and then questioned about an independent crime).


Context: "Allowing a plaintiff to abandon the administrative remedies he has initiated would tend to frustrate the ability of the agency to deal with complaints. All participants would know that at any moment an impatient complainant could take his claim to court and abort the administrative proceedings."

Gagnon v. Potter, No. 3:05-CV-324RM, 2006 WL 2051730, at *3 (N.D.Ind. July 19, 2006) (holding that plaintiff was not allowed to voluntarily withdraw her complaint after electing to have her complaint heard before an administrative law judge); see also Mackay v. USPS, 607 F.Supp. 271, 276 (E.D.Pa.1985) (“The exhaustion requirement is not met by plaintiffs taking the initial administrative steps and then abandoning the process.”)

"The exhaustion requirement is not met by plaintiffs taking the initial administrative steps and then abandoning the process."


Context: While the parties have not cited any opinion addressing the particular bylaw at issue here, and we have found none, other courts have held that the NCAA's "no-draft" and "no-agent" rules, which disqualify a-student-athlete from further intercollegiate competition if the student-athlete enters a professional draft or contacts an agent, are reasonable because they are procompetitive.

holding that NCAA's "no-draft" and "no-agent" rules do not have an anticompetitive impact on a discernable market

See McCormack, 845 F.2d at 1343; Banks v. National Collegiate Athletic Ass’n, 977 F.2d 1081, 1087-94 (7th Cir.1992) (holding that NCAA’s “no-draft” and “no-agent” rules do not have an anticompetitive impact on a discernable market); Gaines, 746 F.Supp. at 746; Jones, 392 F.Supp. at 304 (noting in dicta that “any limitation on access to intercollegiate sports is merely the incidental result of the organization’s pursuit of its legitimate goals”); see also Justice v. National Collegiate Athletic Ass’n, 577 F.Supp. 356, 379 (D.Ariz.1983) (holding that NCAA sanctions such as rendering a college team ineligible for post-season play and for television appearances imposed for violations of rule against providing compensation to student-athletes did not violate antitrust law because sanctions were reasonably related to the NCAA’s goals of preserving amateurism and promoting fair competition).

holding that NCAA sanctions such as rendering a college team ineligible for post-season play and for television appearances imposed for violations of rule against providing compensation to student-athletes did not violate antitrust law because sanctions were reasonably related to the NCAA's goals of preserving amateurism and promoting fair competition


noting in dicta that "any limitation on access to intercollegiate sports is merely the incidental result of the organization's pursuit of its legitimate goals"


Context: . Courts that fail to discern a profit motive often specify an alternative explanation for a party's actions.

But see Antonides v. Commissioner, 893 F.2d 656, 660 (4th Cir.1990) (suggesting that the court does not need to pinpoint the likely motivation, as long as it determines on the basis of the Treasury Regulation factors that the activity was not engaged in for profit).

See, e.g., Polakof, 820 F.2d at 324 (limited partnership that bought film properties was motivated by a desire to create tax shelters rather than to profit); Thomas, 792 F.2d at 1258 (primary objective of coal mining program was to secure tax benefits rather than to earn an economic profit); Estate of Power v. Commissioner, 736 F.2d 826, 831 (1st Cir.1984) (taxpayer’s horse-breeding activity was engaged in for personal satisfaction, not profit); Eastman, 635 F.2d at 841 (family engaged in horse-breeding in order to utilize the losses from that operation to offset other income).


primary objective of coal mining program was to secure tax benefits rather than to earn an economic profit


taxpayer's horse-breeding activity was engaged in for personal satisfaction, not profit


family engaged in horse-breeding in order to utilize the losses from that operation to offset other income


Context: This statement does not negate the court's earlier recognition of its ability to depart based on certain factors that it did not find present in this case. Instead, the court acknowledged that it could not depart simply because it thinks the guidelines, as a whole, are too harsh.

See, e.g., United States v. Scott, 914 F.2d 959, 964 (7th Cir.1990) (general dissatisfaction with the guidelines does not constitute a reasonable basis for departure); see also United States v. Nguyen, 1 F.3d 972, 974 (10th Cir.1993) (no error in court’s recognition that it could not depart downward simply because it thought the guidelines were unfair and it would have imposed a lighter sentence pre-guidelines); Beckham, 968 F.2d at 54 (“[Sjentences established for various crimes under the guidelines cannot be set aside based merely on their perceived severity.”); United States v. Norflett, 922 F.2d 50, 53 (1st Cir.1990) (court could not depart from career offender sentence simply because it thought it incommensurate with the crime).

no error in court's recognition that it could not depart downward simply because it thought the guidelines were unfair and it would have imposed a lighter sentence pre-guidelines


"[Sjentences established for various crimes under the guidelines cannot be set aside based merely on their perceived severity."


court could not depart from career offender sentence simply because it thought it incommensurate with the crime


Context: Conversely, offenses which are of the same nature, but which do not arise out of a single chain of circumstances and are not provable by the same evidence may not properly be tried together.

Cf. State v. Woomer, 276 S.C. 258, 277 S.E.2d 696 (1981) (proper to try together all crimes arising from a single uninterrupted crime spree).

See, e.g., State v. Middleton, 288 S.C. 21, 339 S.E.2d 692 (1986) (holding although prison escapee committed two murders within a few miles of each other and attempted an armed robbery, the trial judge erred in consolidating the charges for one trial where the crimes did not arise out of a single chain of circumstances and they required different evidence); State v. Tate, 286 S.C. 462, 334 S.E.2d 289 (Ct.App.1985) (finding that joint trial on identical but unrelated forgeries violated defendant’s right to a fair trial).


finding that joint trial on identical but unrelated forgeries violated defendant's right to a fair trial


Context: Addressing his sentence, Spratt argues that the court violated his Sixth Amendment right to a jury trial by fashioning a Guidelines sentence based on the drug quantity it found, rather than the drug quantity the jury found. His argument is meritless because the court treated the Guidelines as advisory, rather than mandatory.

holding that there is no Fifth Amendment right to have all facts used to enhance a defendant's Guidelines range charged in the indictment

United States v. Chau, 426 F.3d 1318, 1324 (11th Cir.2005); United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.2005) (holding that the district court was permitted to find conduct that had been acquitted by the jury when determining the defendant’s sentence); see also United States v. Thomas, 446 F.3d 1348, 1355 (11th Cir.2006) (holding that there is no Fifth Amendment right to have all facts used to enhance a defendant’s Guidelines range charged in the indictment).

holding that the district court was permitted to find conduct that had been acquitted by the jury when determining the defendant's sentence


Context: This is surely not what the statute intended, and we don't understand the Tax Court or the IRS to say otherwise. Quite to the contrary, both acknowledge that the parentheticals' lower limits apply per spouse -- which is just another way of saying per taxpayer.

interpreting the married-person par-entheticals to mean that "married taxpayers who file separate returns are limited to acquisition indebtedness of $500,000 each " and "to home equity indebtedness of $50,000 each " (emphasis added

See Sophy, 138 T.C. at 212 (interpreting the married-person par-entheticals to mean that “married taxpayers who file separate returns are limited to acquisition indebtedness of $500,000 each ” and “to home equity indebtedness of $50,000 each ” (emphasis added)); see also Bronstein v. Comm’r, 138 T.C. 382, 386 (2012) (“[T]he parenthetical indebtedness limitations of section 163(h)(3)(B)(ii) and (C)(ii) are $550,000 for each spouse filing a separate return.” (emphasis added)).

"[T]he parenthetical indebtedness limitations of section 163(h)(3)(B)(ii) and (C)(ii) are $550,000 for each spouse filing a separate return." (emphasis added


Context: Given the explicitness Congress has employed with respect to other statutes, Petitioner has not shown that Congress intended to abrogate the Eleventh Amendment in the IRCA.

Eleventh Amendment abrogated in Title VII cases because "person" is defined to include "governments, governmental agencies, [and] political subdivisions" and "employee" includes individuals "subject to the civil service laws of a State government, governmental agency or political subdivision"

See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 449 n. 2, 456, 96 S.Ct. 2666, 2668 n. 2, 2671, 49 L.Ed.2d 614 (Eleventh Amendment abrogated in Title VII cases because “person” is defined to include “governments, governmental agencies, [and] political subdivisions” and “employee” includes individuals “subject to the civil service laws of a State government, governmental agency or political subdivision”); cf. Dellmuth, 491 U.S. at 230-32, 109 S.Ct. at 2401-03 (no abrogation evident in the Education of the Handicapped Act even though it contains frequent references to states). The Court in Dellmuth, at 230-31, 109 S.Ct. at 2401-02, said: “We find it difficult to believe that the 94th Congress, taking careful stock of the state of Eleventh Amendment law, decided it would drop coy hints but stop short of making its intention manifest.”


Context: In light of these legitimate reasons supporting the IJ's findings that Singh testimony was not wholly credible, and that he did not produce sufficient evidence to meet his burden to show past persecution, we cannot conclude that any reasonable adjudicator would find contrary to the IJ's determination concerning Singh's credibility and refugee status. On that same basis, Singh's other claims fail.

IJ's finding, under stricter review of REAL ID Act, that petitioner did not testify credibly "precludes her from meeting any of these burdens of proof'

See Bah, 462 F.3d at 643 (“Because Bah cannot show that she qualifies for asylum, she cannot meet the more stringent standards required to qualify for the protections of withholding of removal or under CAT.”); see also El-Moussa v. Holder, 569 F.3d 250, 256-57 (6th Cir.2009) (IJ’s finding, under stricter review of REAL ID Act, that petitioner did not testify credibly “precludes her from meeting any of these burdens of proof’).

"Because Bah cannot show that she qualifies for asylum, she cannot meet the more stringent standards required to qualify for the protections of withholding of removal or under CAT."


Context: The focus of this analysis is on the relief actually obtained rather than on the success of the legal theories. Thus, as one would deduce from this approach, a plaintiff is a prevailing party to the extent extrajudicial relief makes legal claims moot.

"[A] party may be considered to be 'prevailing' if the litigation successfully terminates by a consent de cree, an out-of-court-settlement, a voluntary cessation of the unlawful practice by the defendant, or other mooting of the case when the plaintiff has vindicated his right."

See Ross v. Horn, 598 F.2d 1312, 1322 (3d Cir.1979) (plaintiffs were prevailing parties because changes in the law had mooted their claims), cert. denied, 448 U.S. 906, 100 S.Ct. 3048, 65 L.Ed.2d 1136 (1980); see also Doe v. Busbee, 684 F.2d 1375, 1379 (11th Cir.1982) (“[A] party may be considered to be ‘prevailing’ if the litigation successfully terminates by a consent de cree, an out-of-court-settlement, a voluntary cessation of the unlawful practice by the defendant, or other mooting of the case when the plaintiff has vindicated his right.”).


Context: Moreover, the January/February, 2000 Confession Date first was articulated here by the Plaintiffs own witness, Denise. Accordingly, this court is not persuaded that the Debtor is playing "fast and loose" with the courts by using the January/February, 2000 Confession Date here.

"Judicial estoppel ... is an equitable doctrine invoked by a court at its discretion."

See also Galin v. I.R.S., 563 F.Supp.2d 332, 339 (D.Conn.2008) (“Judicial estoppel ... is an equitable doctrine invoked by a court at its discretion.”).

"Judicial estoppel is designed to prevent a party who plays fast and loose with the courts from gaining unfair advantage through the deliberate adoption of inconsistent positions in successive suits."

See Wight v. BankAmerica Corp., 219 F.3d 79, 89 (2d Cir.2000) (“Judicial estoppel is designed to prevent a party who plays fast and loose with the courts from gaining unfair advantage through the deliberate adoption of inconsistent positions in successive suits.”).


Context: The rationale of Schad has been adopted in numerous jurisdictions.

See People v. Milan, 9 Cal.3d 185, 194, 507 P.2d 956, 959, 961-62 (1973) (holding that there is no error in instructing the jury on alternative theories if there is sufficient evidence that the defendant committed first-degree murder); People v. Travis, 170 Ill.App.3d 873, 891, 121 Ill.Dec. 830, 841, 525 N.E.2d 1137, 1148 (stating that the jury must be unanimous on the ultimate question of guilt or innocence, not on the theory applied), appeal denied, 122 Ill.2d 590, 125 Ill.Dec. 232, 530 N.E.2d 260 (1988), cert. denied, 489 U.S. 1024, 109 S.Ct. 1149, 103 L.Ed.2d 209 (1989); State v. Fuhrmann, 257 N.W.2d 619, 626 (Iowa 1977) (holding that first-degree murder is one crime, although the defendant can commit the crime in several ways); State v. Wilson, 220 Kan. 341, 345, 552 P.2d 931, 936 (1976) (holding that the accused cannot impeach a verdict .on the basis that the jury could not agree on the theory of first-degree murder), overruled on other grounds by State v. Quick, 226 Kan. 308, 597 P.2d 1108 (1979); Commonwealth v. Devlin, 335 Mass. 555, 565-68, 141 N.E.2d 269, 274-76 (1957) (holding that a homicide conviction is acceptable even if the jury does not specify a theory); People v. Embree, 70 Mich.App. 382, 384, 246 N.W.2d 6, 7 (1976) (holding that when the evidence shows that the defendant is guilty of premeditated and felony murder, a jury instruction on unanimity is irrelevant); State v. Buckman, 237 Neb. 936, 942, 468 N.W.2d 589, 593 (1991) (holding that the jury need agree only that the defendant committed first-degree murder, not on the theory by which it reached the verdict); State v. Tillman, 750 P.2d 546, 563-65 (Utah 1987) (holding that the jury need not agree on the theory supporting the conviction if there is sufficient evidence to support either theory); but see State v. Murray, 308 Or. 496, 782 P.2d 157 (1989) (holding that the trial court erred in giving jury instructions that offered alternative theories of murder).


stating that the jury must be unanimous on the ultimate question of guilt or innocence, not on the theory applied


holding that first-degree murder is one crime, although the defendant can commit the crime in several ways


holding that the accused cannot impeach a verdict .on the basis that the jury could not agree on the theory of first-degree murder


holding that a homicide conviction is acceptable even if the jury does not specify a theory


holding that when the evidence shows that the defendant is guilty of premeditated and felony murder, a jury instruction on unanimity is irrelevant


holding that the jury need agree only that the defendant committed first-degree murder, not on the theory by which it reached the verdict


holding that the jury need not agree on the theory supporting the conviction if there is sufficient evidence to support either theory


Context: This provision, by granting the IRS assessment authority, must simultaneously grant the IRS power to decide how to make that assessment -- at least within certain limits. And the courts have consistently held that those limits are not exceeded when the IRS estimates an individual's tax liability -- as long as the method used to make the estimate is a "reasonable" one.

See also Janis, supra, at 437 (upholding estimate of tax liability over 77-day period made by extrapolating information based on gross proceeds from 5-day period); Dodge v. Commissioner, 981 F. 2d 350, 353-354 (CA8 1992) (upholding estimate using bank deposits by taxpayer); Pollard v. Commissioner, 786 F. 2d 1063, 1066 (CA11 1986) (upholding estimate using statistical tables reflecting cost of living where taxpayer lived); Gerardo v. Commissioner, 552 F. 2d 549, 551-552 (CA3 1977) (upholding estimate using extrapolation of income over 1-year period based on gross receipts from two days); Mendelson v. Commissioner, 305 F. 2d 519, 521-522 (CA7 1962) (upholding estimate of waitress’ tip income based on restaurant’s gross receipts and average tips earned by all wait resses employed by restaurant); McQuatters v. Commissioner, 32 TCM 1122 (1973), ¶ 73,240 P-H Memo TC (same).

estimate made with reference to taxpayer's purchasing record was "presumptively correct" when based on "reasonable foundation"

See, e. g., Erickson v. Commissioner, 937 F. 2d 1548, 1551 (CA10 1991) (estimate made with reference to taxpayer’s purchasing record was “presumptively correct” when based on “reasonable foundation”).


upholding estimate using extrapolation of income over 1-year period based on gross receipts from two days


upholding estimate of waitress' tip income based on restaurant's gross receipts and average tips earned by all wait resses employed by restaurant


Context: Under the last specific factor, the time between the shooting incident and the various pretrial identifications was in no case greater than two months, which is not enough by itself to raise serious questions about reliability.

See, e.g., Goodman, 797 F.2d at 471 (two months from incident to identification at suggestive pretrial proceeding and five months from incident to identification at trial did not in the circumstances of the case make the identification inadmissible); cf. Biggers, 409 U.S. at 201, 93 S.Ct. at 383 (lapse of seven months between view of individual at crime and first identification of defendant did not make identification inadmissible).


Context: The bland "excessive bail" limitation historically defined as "no more than is necessary," is to be contrasted with the strong adjectives attached to "punishments" in the Eighth Amendment, viz. "cruel and unusual." See also, e.g., Anthony F. Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Cal. L.Rev. 839, 839-42 (1969) (noting that American framers understood "cruel and unusual" to mean "barbarous," as opposed to "merely excessive."); id. at 843-44 (arguing that, contrary to the interpretation of American framers, before the English Bill of Rights was adopted in 1689, Great Britain had "a general policy against excessive[ ] ... [but] not ... 'barbarous' punishments") (quotation marks omitted).

applying "cruel and unusual" precedents in determining whether a fine is unconstitutionally "excessive," in recognition of the fact that fines are necessarily punitive

But cf. United States v. Bajakajian, 524 U.S. 321, 321-27, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) (applying “cruel and unusual” precedents in determining whether a fine is unconstitutionally “excessive,” in recognition of the fact that fines are necessarily punitive).

"The [Eighth] Amendment proscribes ... cruel and unusual punishments that may or may not be excessive."

Cf. Kennedy v. Louisiana, — U.S. —, 128 S.Ct. 2641, 2649, 171 L.Ed.2d 525 (2008) (“The [Eighth] Amendment proscribes ... cruel and unusual punishments that may or may not be excessive.”) (emphasis added; quotation marks omitted).


Context: Courts interpreting Rodriguez also equate accuracy with a professional judgment standard.

overturning jury verdict rendered in favor of person involuntarily committed because jury was not competent to evaluate the professional propriety of the defendant doctors' actions without the assistance of expert testimony

See Monaco v. Carpinello, 2004 WL 3090598, at *8 (E.D.N.Y. Jul.22, 2004) (“Monaco III”) (due process requires that involuntary commitment determinations be made in accordance with a standard that must not fall substantially below that which is generally accepted in the medical community) (citing Katzman v. Khan, 67 F.Supp.2d 103, 109-10 (E.D.N.Y.1999)); Fisk v. Letterman, 501 F.Supp.2d 505, 524 (S.D.N.Y.2007) (granting summary judgment on claim that commitment violated right to substantive due process where plaintiff presented no evidence that doctor’s determination that she presented a danger to herself or others fell below generally accepted medical standards); Dove v. City of New York, 2005 WL 2387587, at *3 (E.D.N.Y. Sept.28, 2005); see also Olivier v. Robert L. Yeager Mental Health Ctr., 398 F.3d 183, 191 (2d Cir.2005) (overturning jury verdict rendered in favor of person involuntarily committed because jury was not competent to evaluate the professional propriety of the defendant doctors’ actions without the assistance of expert testimony).

granting summary judgment on claim that commitment violated right to substantive due process where plaintiff presented no evidence that doctor's determination that she presented a danger to herself or others fell below generally accepted medical standards


Context: Under certain circumstances, a petitioner may be forced to proceed without counsel. This might be warranted if the petitioner were not a minor and had explicitly waived his right to counsel, or delayed the hearing in bad faith, or sat on his right to obtain counsel.

finding no due process violation where adult alien's "failure to obtain counsel after four months and two continuances makes apparent that he simply was unable to secure counsel at his own expense."

See Colindres-Aguilar v. INS, 819 F.2d 259 (9th Cir.1987) (finding due process violation where without questioning him IJ deemed alien who had received previous continuance to obtain counsel to be proceeding pro se when he showed up at reconvened hearing without his new counsel); Castro-Nuno v. INS, 577 F.2d 577, 579 (9th Cir.1978) (finding abuse of discretion and noting absence of indication that alien was delaying hearing in bad faith in not yet having obtained counsel); cf. Vides-Vides v. INS, 783 F.2d 1463, 1470 (9th Cir.1986) (finding no due process violation where adult alien’s “failure to obtain counsel after four months and two continuances makes apparent that he simply was unable to secure counsel at his own expense.”).


finding abuse of discretion and noting absence of indication that alien was delaying hearing in bad faith in not yet having obtained counsel


Context: This Court's earlier assertion that it retained habeas jurisdiction over Fierro's claim, however, did not address the fact that his claim is governed by the permanent, rather than the transitional, rules established by the AEDPA and the IIRI-RA. Under the transitional rules, certain categories of deportees were afforded no judicial review whatsoever, a legal scheme whose dubious constitutionality caused the First Circuit to rule that habeas jurisdiction still existed in the federal district court under the transitional rules.

"Under the AEDPA and IIRIRA the appropriate forum for petitioner's challenge to his final deportation is not the district court but the court of appeals."

See Goncalves, 144 F.3d at 122. Under the permanent rules, however, deportees such as Fierro may seek review of their claims in the Court of Appeals. See 8 U.S.C. § 1252(b)(5)(A); Rosas-Paniaqua v. Reno, 76 F.Supp.2d 1060, 1062 (N.D.Cal.1999) (“Under the AEDPA and IIRIRA the appropriate forum for petitioner’s challenge to his final deportation is not the district court but the court of appeals.”); see also 8 U.S.C. § 1252(a)(1). Whether that distinction between the transitional and permanent rules will satisfy the First Circuit’s constitutional concerns about withdrawal of habeas jurisdiction remains to be seen. See Prado v. Reno, 198 F.3d 286, 287 (1st Cir.1999) (noting that “[m]uch of the logic of our analysis” for jurisdictional issues under transitional rules applies under permanent rules as well). Neither party in this case has addressed the issue.

noting that "[m]uch of the logic of our analysis" for jurisdictional issues under transitional rules applies under permanent rules as well


Context: We review the Commission's findings of fact for substantial evidence.

"Commission findings of fact are conclusive for a reviewing court 'if supported by substantial evidence.' "

See Steadman v. SEC, 450 U.S. 91, 97 n. 12, 101 S.Ct. 999, 67 L.Ed.2d 69 (1981) (“Commission findings of fact are conclusive for a reviewing court ‘if supported by substantial evidence.’ ”) (quoting 15 U.S.C. §§ 78y, 80a-42, and 80b-13); 15 U.S.C. § 77i (“The finding of the Commission as to the facts, if supported by evidence, shall be conclusive.”); see also Steadman, 450 U.S. at 96, 101 S.Ct. 999 (securities laws provide scope of judicial review of Commission disciplinary proceedings).


Context: Jones acknowledges that the Veterans Court's interim orders are treated like remand orders and are generally not reviewable.

"In applying the statute that grants us jurisdiction over appeals from the Veterans Court, we have generally declined to review non-final orders of the Veterans Court."

See Adams v. Principi, 256 F.3d 1318, 1320 (Fed.Cir.2001) (“In applying the statute that grants us jurisdiction over appeals from the Veterans Court, we have generally declined to review non-final orders of the Veterans Court.”); see also Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945) (finding that an “order is final only when it ends the litigation on the merits and leaves nothing more for the court to do but execute judgment”).

finding that an "order is final only when it ends the litigation on the merits and leaves nothing more for the court to do but execute judgment"


Context: However, "we do not sit as a super-personnel department that reexamines an entity's business decisions"; rather, "our inquiry is limited to whether the employer gave an honest explanation of its behavior." In light of Leveridge's lengthy employment history, including her time working as an accountant for the City of Philadelphia and in the accounting department for South western Bell, we see no basis for a reasonable juror to conclude that the defendants did not actually believe that Leveridge satisfied the experience requirement.

concluding that defendant was entitled to summary judgment when the plaintiffs "evidence at most show[ed] that the evaluators could have given him somewhat higher scores and [his competitor] somewhat ' lower scores than they did"

See Jones, 198 F.3d at 414. ("While Jones may quarrel with the school district’s conclusions regarding particular controversies, the bona fides of its determinations simply cannot be doubted.”); cf. Jackson v. Gonzales, 496 F.3d 703, 708 (D.C.Cir.2007) (concluding that defendant was entitled to summary judgment when the plaintiffs “evidence at most show[ed] that the evaluators could have given him somewhat higher scores and [his competitor] somewhat ' lower scores than they did”).

"While Jones may quarrel with the school district's conclusions regarding particular controversies, the bona fides of its determinations simply cannot be doubted."