Context: (See Standard's Surreply 4 (citing common law and First Amendment precedent in same footnote).) Nevertheless, due to the important constitutional principles at stake, the Court construes Standard's argument as a separate assertion of both the common law and the First Amendment presumptions of access with respect to all of the documents.

recognizing court's role as "primary representative of the public interest" and its duty to determine whether confidential treatment over "records filed wholesale under seal" is warranted

See, e.g., Gambale, 377 F.3d at 141 (recognizing court’s role as “primary representative of the public interest” and its duty to determine whether confidential treatment over “records filed wholesale under seal” is warranted) (internal quotation marks and citations omitted); see also Lugosch, 435 F.3d at 124 (“Having concluded that the common law presumption of access exists in this context, we may not avoid the ques tion of whether a First Amendment presumption of access also exists.”).

"Having concluded that the common law presumption of access exists in this context, we may not avoid the ques tion of whether a First Amendment presumption of access also exists."


Context: . The plaintiff also appears to claim religious discrimination under Section 1981. Am. Compl. P 2. However, religious discrimination claims are not cognizable under Section 1981, which is limited to the prohibition against racial discrimination.

stating that Section 1981 "forbid[s] all racial discrimination in the making of private as well as public contracts"

Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987) (stating that Section 1981 "forbid[s] all racial discrimination in the making of private as well as public contracts”) (internal quotation marks and citation omitted); see also Estate of Williams-Moore v. Alliance One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 647 n. 4 (M.D.N.C.2004) (stating that "[S]ection 1981 does not protect against discrimination based on religion”) (citations omitted); Farbstein v. Hicksville Pub. Library, 323 F.Supp.2d 414, 417 (E.D.N.Y.2004) (stating that "Section 1981 is grounded in racial discrimination and does not apply to actions alleging religious discrimination”) (citation omitted).

stating that "[S]ection 1981 does not protect against discrimination based on religion"


stating that "Section 1981 is grounded in racial discrimination and does not apply to actions alleging religious discrimination"


Context: Any claimed injustice arises from the Defendant's elective choices, and not from the application of collateral estoppel.

finding that an issue was actually-litigated for collateral estoppel purposes even when a party produces minimal evidence on the issue, because "[a]ny other result would permit a litigant to avoid the conclusive effect of collateral estoppel, by design or by inadvertence, by denoting as irrelevant an issue clearly raised by his opponent and by refusing to introduce evidence on the issue."

See, Ossman v. Diana Corp., 825 F.Supp. 870, 879 (D.Minn.1993)(the Court found no unfairness in the application of collateral estoppel when the defendant was forced “to abide by consequences they knew might arise out of their prior tactical decisions,” to settle with the plaintiff in the prior action instead of appealing the Court’s ruling.); see also, Continental Can Co., U.S.A. v. Marshall, 603 F.2d 590, 596 (7th Cir.1979)(finding that an issue was actually-litigated for collateral estoppel purposes even when a party produces minimal evidence on the issue, because “[a]ny other result would permit a litigant to avoid the conclusive effect of collateral estoppel, by design or by inadvertence, by denoting as irrelevant an issue clearly raised by his opponent and by refusing to introduce evidence on the issue.”).

the Court found no unfairness in the application of collateral estoppel when the defendant was forced "to abide by consequences they knew might arise out of their prior tactical decisions," to settle with the plaintiff in the prior action instead of appealing the Court's ruling.


Context: Instead, the time requirement of 19-1-108(5) is a procedural rule that creates a condition precedent to the party's right to appeal the magistrate's order. Because such procedures can be waived and because the Department failed to raise the requirements of 19 -- 1--108(5) before the district court reviewed C.S.'s petition, the Department has waived any argument under 19-1-108(5).

holding that Crim. P. 35's requirement that criminal defendants file a motion for relief with the state court before proceeding to habeas corpus implicates the doctrine of exhaustion of legal remedies and not the concept of subject matter jurisdiction, and any argument based on Crim. P. 35 is therefore waivable

Horton v. Suthers, 43 P.3d 611, 617-618 (Colo.2002)(holding that Crim. P. 35’s requirement that criminal defendants file a motion for relief with the state court before proceeding to habeas corpus implicates the doctrine of exhaustion of legal remedies and not the concept of subject matter jurisdiction, and any argument based on Crim. P. 35 is therefore waivable); see also Ex Parte H.F., 843 So.2d 190, 191-92 (Ala.2002) (holding that the state’s failure to object to a late petition for appeal of a termination order granted by the trial court on the basis of excusable neglect constituted a waiver of the state’s right to contest excusable neglect on appeal to the court of appeals).

holding that the state's failure to object to a late petition for appeal of a termination order granted by the trial court on the basis of excusable neglect constituted a waiver of the state's right to contest excusable neglect on appeal to the court of appeals


Context: (See R. 22, Pl.'s Mem. in Supp. of Mot. for Summ. J. at 10-13.) We note, however, that there is little support for this broad argument, aside from the Sixth Circuit case cited in Plaintiff's brief. The Supreme Court has never recognized field preemption in this specific area.

"the enactment by Congress of the Railway Labor Act was not a preemption of the field of regulating working conditions themselves"

See Terminal R.R. Ass'n v. Trainmen, 318 U.S. 1, 6-7, 63 S.Ct. 420, 87 L.Ed. 571 (1943) ("the enactment by Congress of the Railway Labor Act was not a preemption of the field of regulating working conditions themselves”); see also Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987) (preemption "should not be lightly inferred ... since the establishment of labor standards falls within the traditional police power of the State.”).

preemption "should not be lightly inferred ... since the establishment of labor standards falls within the traditional police power of the State."


Context: He then took her to the empty apartment on Maple Street or some other location where he raped her. The evidence shows that Davenport was orally, anally, and vaginally raped, and then apparently allowed to dress. Only then did Craig murder her.

See State v. Hill (1992), 64 Ohio St.3d 313, 332, 595 N.E.2d 884 (separate animus for kidnapping where defendant forced a 12-year-old victim from a parking lot to a wooded area where he then raped and murdered him); State v. Powell (1990), 49 Ohio St.3d 255, 261-262, 552 N.E.2d 191 (kidnapping upheld as a separate offense where defendant lured a child from her home to a nearby building where he attempted to rape her and then killed her); cf. State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 93 (no separate animus since victim not moved from the bedroom where she was raped and murdered).


kidnapping upheld as a separate offense where defendant lured a child from her home to a nearby building where he attempted to rape her and then killed her


Context: It is not enough to assert that the ordinary purpose of a defamation action is to vindicate and protect a person's common law reputational interest. The First Amendment protects public discourse-- even in the form of withering criticism of a political opponent's past dealings or associations -- unless the lodged attack is clearly shown to be false and made with actual malice.

"Speech does not lose its protected character ... simply because it may embarrass others or coerce them into # action."

See Monitor Patriot Co., 401 U.S. at 274-77, 91 S.Ct. at 626-28, 28 L.Ed.2d at 42-44 (discussing attacks based on private conduct in political campaigns); Garrison, 379 U.S. at 72-73, 85 S.Ct. at 215,13 L.Ed.2d at 132 (“[Wjhere the criticism is of public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of truth.”); see also N.Y. Times, 376 U.S. at 279-80, 84 S.Ct. at 726, 11 L.Ed.2d at 706; cf. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910, 102 S.Ct. 3409, 3424, 73 L.Ed.2d 1215,1234 (1982) (“Speech does not lose its protected character ... simply because it may embarrass others or coerce them into ■ action.”). After all, New York Times and its progeny even reach so far as to protect pillorying barbs some may regard as offensive and outrageous.

"[Wjhere the criticism is of public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of truth."


Context: . As a general matter, restitution is part of a criminal sentence.

"Restitution imposed as a component of the defendant's sentence is a criminal penalty, not a civil remedy."

See United States v. Buchey, 810 F.2d 456, 461 (4th Cir.1987) (“Criminal restitution ... is part of the sentencing process [and thus] is fundamentally 'penal' in nature.”); see also United States v. Snider, 957 F.2d 703, 706-07 (9th Cir.1992) (“Restitution imposed as a component of the defendant’s sentence is a criminal penalty, not a civil remedy."); United States v. Satterfield, 743 F.2d 827, 837 (11th Cir.1984) (noting that Congress intended “to treat restitution as one of the options available to the district court in imposing an appropriate sen tence”).

"Criminal restitution ... is part of the sentencing process [and thus] is fundamentally 'penal' in nature."


noting that Congress intended "to treat restitution as one of the options available to the district court in imposing an appropriate sen tence"


See United States v. Bu-chey, 810 F.2d 456, 461 (4th Cir.1987) ("Criminal restitution ... is part of the sentencing process [and thus] is fundamentally 'penal' in nature.”); see also United States v. Snider, 957 F.2d 703, 706-07 (9th Cir.1992) (“Restitution imposed as a component of the defendant’s sentence is a criminal penalty, not a civil remedy.”); United States v. Satter-field, 1A3, F.2d 827, 837 (11th Cir.1984) (noting that Congress intended "to treat restitution as one of the options available to the district court in imposing an appropriate sen tence”).


Context: While we are not bound by other circuit courts' decisions, we are persuaded by the numerous decisions of other circuit courts that have rejected Bloodsworth or its rationale and have held that Sanders precludes judicial review of an administrative decision not to extend the time limit.

AU's denial of request for extension of time not subject to judicial review

See, e.g., Smith, 761 F.2d at 518-19 (8th Cir.1985) (Appeals Council’s decision not to consider untimely request for review not “final” decision under § 405(g), thus precluding judicial review, explicitly rejecting Bloodsworth); White v. Schweiker, 725 F.2d 91 (10th Cir.1984) (denial of extension of time to request AU hearing not subject to judicial review); Penner v. Schweiker, 701 F.2d 256 (3d Cir.1983) (Secretary’s denial of extension of time to request hearing not subject to judicial review under § 405(g), but holding that district court had jurisdiction to consider due process challenge based on ineffective notice of the Secretary’s determination); Dietsch v. Schweiker, 700 F.2d 865 (2d Cir.1983) (refusal by Appeals Council to enlarge time for its review not subject to judicial review); Watters v. Harris, 656 F.2d 234 (7th Cir.1980) (denial of motion to extend time to request hearing before AU not subject to judicial review); Peterson v. Califano, 631 F.2d 628 (9th Cir.1980) (refusal of Appeals Council to extend 60-day filing period for appeal to district court was not final decision under Sanders, distinguishing Langford); Sheehan v. Secretary of HEW, 593 F.2d 323 (8th Cir.1979) (Appeals Council’s decision denying review of late application not subject to judicial review); see also Sullivan v. Heckler, 602 F.Supp. 85 (D.Md.1985) (Appeals Council decision denying review of late application not subject to judicial review; explicitly rejecting Bloodsworth); Burbage v. Schweiker, 559 F.Supp. 1371 (N.D.Cal.1983) (AU’s denial of request for extension of time not subject to judicial review).


Secretary's denial of extension of time to request hearing not subject to judicial review under SS 405(g


refusal by Appeals Council to enlarge time for its review not subject to judicial review


denial of motion to extend time to request hearing before AU not subject to judicial review


refusal of Appeals Council to extend 60-day filing period for appeal to district court was not final decision under Sanders, distinguishing Langford


Appeals Council's decision denying review of late application not subject to judicial review


Context: Under the legal principals set forth in II.B supra, the material submitted by the Poradisovs in 2003 was sufficient to meet the Poradisovs' burden on their motion. It certainly warranted more than a perfunctory (and clearly inaccurate) mention by the BIA as being "merely cumulative."

in denying Zhao's motion to reopen, BIA abused its discretion by disposing, in a single sentence, of new country conditions evidence as "'largely repeating]' " the evidence from the original record

See Yu Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir.2005) (in denying Zhao’s motion to reopen, BIA abused its discretion by disposing, in a single sentence, of new country conditions evidence as “‘largely repeating]’ ” the evidence from the original record); cf. Cordero-Trejo v. INS, 40 F.3d 482, 492 (1st Cir.1994) (vacating and remanding denial of asylum because country conditions evidence was “far too extensive and significant to be dismissed with a general statement”).

vacating and remanding denial of asylum because country conditions evidence was "far too extensive and significant to be dismissed with a general statement"


Context: But this is not a case where agents, having completed an investigation, and having planned elsewhere to effect an arrest and for no reason other than convenience, created exigent circumstances by going to the suspect's home without a warrant and announcing their presence.

See United States v. McEachin, 670 F.2d 1139, 1145 (D.C.Cir.1981) (where decision not to obtain a warrant during an earlier stage of an investigation was not unreasonable, existence of exigent circumstances determined at the time of warrantless entry).

officers met at local coffee shop to "assess the situation" before making warrantless home arrest

Compare United States v. Morgan, 743 F.2d 1158, 1162 (6th Cir.1984) (officers met at local coffee shop to “assess the situation” before making warrantless home arrest); Segura, supra, 663 F.2d 411 (2d Cir.1981), aff'd on other grounds, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (warrantless entry for security check of apartment held unjustifiable where agents, despite the absence of reason to believe occupants of apartment were aware of investigation or that there was any urgent need to enter apartment, created their own exigent circumstances by knocking at door); United States v. Rosselli, 506 F.2d 627 (7th Cir.1974); United States v. Serna, 625 F.Supp. 548, 554-55 (S.D.N.Y.1985) (similiar facts to Segura). Given the state of the evidence on Cattouse’s involvement in the earlier buy and the absence of probable cause to believe a crime was committed in the afternoon until the second sale was actually consummated, I find the officer’s conduct in failing to obtain a warrant before the second buy was consummated reasonable.


warrantless entry for security check of apartment held unjustifiable where agents, despite the absence of reason to believe occupants of apartment were aware of investigation or that there was any urgent need to enter apartment, created their own exigent circumstances by knocking at door


Context: While refusing to identify specific prejudicial attorney behavior, the Supreme Court acknowledged that some attorney errors will have only an "isolated, trivial effect," while others will have a "pervasive effect ... altering the entire evidentiary picture." Numerous lower courts have found prejudice in cases where attorney error resulted in a significantly skewed "evidentiary picture," leaving the defendant with no effective defense.

counsel's failure to interview and subpoena alibi witnesses left defendant's alibi uncorroborated, prejudicing the outcome of the trial

See Luna v. Cambra^ 306 F.3d 954, 961, 966 (9th Cir.2002), amended by Luna v. Cambra, 311 F.3d 928 (9th Cir. 2002) (counsel’s failure to interview and subpoena alibi witnesses left defendant’s alibi uncorroborated, prejudicing the outcome of the trial); Brown v. Myers, 137 F.3d 1154, 1157 (9th Cir.1998) (missing alibi witness testimony would have “altered significantly the evidentiary posture of the case ... [and] the jury would have had to balance more evenly divided evidence to reach its verdict”); Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir.1994) (defense counsel’s failure to investigate and present confession of third party “must certainly undermine one’s confidence in the murder conviction ... [and] served to deprive [the defendant] of the most critical evidence supporting his best defense”); see also Goodman v. Bertrand, 467 F.3d 1022, 1024, 1030 (7th Cir.2006) (testimony from a disinterested eyewitness, who defense counsel failed to subpoena, was “undoubtedly important to creating reasonable doubt in the state’s case” against the defendant).

testimony from a disinterested eyewitness, who defense counsel failed to subpoena, was "undoubtedly important to creating reasonable doubt in the state's case" against the defendant


missing alibi witness testimony would have "altered significantly the evidentiary posture of the case ... [and] the jury would have had to balance more evenly divided evidence to reach its verdict"


defense counsel's failure to investigate and present confession of third party "must certainly undermine one's confidence in the murder conviction ... [and] served to deprive [the defendant] of the most critical evidence supporting his best defense"


Context: Officials are liable for committing constitutional torts, accordingly, only if they knew, or were unreasonable in not knowing, that their behavior violated the Constitution.

"[W]hether an official protected by qualified immunity may be held personally liable ... generally turns on the 'objective legal reasonableness' of [his] action"

See, e.g., Anderson, 483 U.S. at 639, 107 S.Ct. at 3038 (“[W]hether an official protected by qualified immunity may be held personally liable ... generally turns on the ‘objective legal reasonableness’ of [his] action”) (quoting Harlow, 457 U.S. at 819, 102 S.Ct. at 2738); see also Martin v. Malhoyt, 830 F.2d 237, 253-54 (D.C.Cir.1987) (summary judgment must be granted unless “the unlawfulness of defendant’s action was so ‘apparent/ that no reasonable officer could have believed in the lawfulness of his actions”) (citation omitted).

summary judgment must be granted unless "the unlawfulness of defendant's action was so 'apparent/ that no reasonable officer could have believed in the lawfulness of his actions"


"[Wjhether an official protected by qualified immunity may be held personally liable ... generally turns on the 'objective legal reasonableness' of [his] action"

See, e.g., Anderson, 483 U.S. at 639, 107 S.Ct. at 3038 (“[Wjhether an official protected by qualified immunity may be held personally liable ... generally turns on the ‘objective legal reasonableness’ of [his] action”) (quoting Harlow, 457 U.S. at 819, 102 S.Ct. at 2738); see also Martin v. Malhoyt, 830 F.2d 237, 253-54 (D.C.Cir.1987) (summary judgment must be granted unless “the unlawfulness of defendant’s action was so ‘apparent,’ that no reasonable officer could have believed in the lawfulness of his actions”) (citation omitted).

summary judgment must be granted unless "the unlawfulness of defendant's action was so 'apparent,' that no reasonable officer could have believed in the lawfulness of his actions"


Context: That holding applies here a fortiori. Here, all of tire documents that defense counsel has provided its witnesses to review in preparation for their depositions already have been produced to Plaintiffs or are otherwise publicly available. Plaintiffs cannot establish that have a "substantial need" to know which documents counsel used to prepare the witnesses, or that identification is "necessary in the interests of justice." Indeed, in the few depositions to this point, Plaintiffs already have marked hundreds of produced 'documents as exhibits. There is no compelling need for them to see which documents defense counsel think are important.

"Rule 612 should never implicate an attorney's selection, in preparation for a witness' deposition, of a group of documents that he believes critical to a case,"

See Sporck, 759 F.2d at 318 (“Rule 612 should never implicate an attorney’s selection, in preparation for a witness’ deposition, of a group of documents that he believes critical to a case,”); see also Hanover Ins., 304 F.R.D. at 500 (holding that requesting party “ha[d] not met its burden” to prove that justice required disclosure of compilation under Rule 612); af.

holding that requesting party "ha[d] not met its burden" to prove that justice required disclosure of compilation under Rule 612


Context: . [1] To find otherwise, would require this Court to make a judicial finding of the factual existence of this aggravating circumstance for the other murder count. Judicial findings of aggravating circumstances are constitutionally prohibited.

Cf. Young v. State, 1998 OK CR 62, 992 P.2d 332, 343-44, cert. denied, 528 U.S. 837, 120 S.Ct. 100, 145 L.Ed.2d 84 (1999)(finding based upon State's closing argument single verdict form supported application of all aggravating circumstances to all murder counts and setting aside one aggravating circumstance due to lack of notice).

Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (Any fact that increases punishment must be found by a jury after proof beyond a reasonable doubt).


Context: Substantial evidence supports the agency's finding that Gomez-Gonzalez failed to establish the harm he suffered or feared was or would be on account of a protected ground.

the REAL ID Act "requires that a protected ground represent 'one central reason' for an asylum applicant's persecution"

See Ayala v. Holder, 640 F.3d 1095, 1098 (9th Cir.2011) (per curiam) (evidence demonstrated former officer was shot at and threatened because he had arrested particular criminal, not on account of his status as a former police officer); see also Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir.2009) (the REAL ID Act “requires that a protected ground represent ‘one central reason’ for an asylum applicant’s persecution”).


Context: Neverthe less, they are not subject to the PCRA's previous-litigation bar because they are distinct ineffectiveness claims derivative of the underlying issues. This Court has recognized that, while such ineffectiveness claims may fail for the same reason that the underlying issues faltered on direct review, the Sixth Amendment basis for an allegation of counsel ineffectiveness gives rise to a separate claim for review under the PCRA.

holding that derivative ineffectiveness claims are distinct Sixth Amendment claims, albeit they "may fail on the arguable merit or prejudice prong for the reasons discussed on direct appeal"

See Commonwealth v. Carson, 590 Pa. 501, 526, 918 A.2d 220, 284 (2006); see also Commonwealth v. Collins, 585 Pa. 45, 61, 888 A.2d 564, 573 (2005) (holding that derivative ineffectiveness claims are distinct Sixth Amendment claims, albeit they “may fail on the arguable merit or prejudice prong for the reasons discussed on direct appeal”); cf. Williams, 597 Pa. at 142, 950 A.2d at 313-14 (“While under the Collins decision, layered ineffectiveness claims are distinct from the underlying claims, the underlying claims remain an essential component, and it should now go without saying that those challenging a verdict must attend to all aspects of their claims for relief.” (citing Collins, 585 Pa. at 60-61, 888 A.2d at 573)).

"While under the Collins decision, layered ineffectiveness claims are distinct from the underlying claims, the underlying claims remain an essential component, and it should now go without saying that those challenging a verdict must attend to all aspects of their claims for relief." (citing Collins, 585 Pa. at 60-61, 888 A.2d at 573


Context: "[A] number of courts have held that binding administrative regulations, as opposed to those that serve merely as guidelines for discretionary decisionmak-ing, are laws subject to ex post facto analysis."

"The Ex Post Facto Clause simply forbids retroactive application of the BOP policy change to prisoners whose offense conduct predated the change."

See Iacaboni, 251 F.Supp.2d at 1018 (“The Government may not ... instruct judges, defendants and counsel that short terms of imprisonment may ... be served in community confinement, and then, after sentencing, change the basic rules.”); see also Monahan v. Winn, 276 F.Supp.2d 196, 219 (D.Mass.2003) (“The Ex Post Facto Clause simply forbids retroactive application of the BOP policy change to prisoners whose offense conduct predated the change.”).

"The Government may not ... instruct judges, defendants and counsel that short terms of imprisonment may ... be served in community confinement, and then, after sentencing, change the basic rules."


Context: In the absence of any evidence of a contractual relationship, I conclude that BFCU's termination of the Jaspers' membership benefits did not violate the stay.

credit union's policy of revoking membership benefits of members who caused credit union a loss does not violate automatic stay

See also In re Henry, 129 B.R. 75, 78 (Bankr.E.D.Va.1991) (credit union’s policy of revoking membership benefits of members who caused credit union a loss does not violate automatic stay); cf. In re Bobbitt, 174 B.R. 548, 553-54 (inferring existence of contract between credit union and member that covered maintenance of accounts, despite inadequate evidence of such an agreement presented at trial, court nonetheless holds that credit union’s “cancellation” of services constituted at most a breach of the inferred contract, for which relief from stay would not be required).

inferring existence of contract between credit union and member that covered maintenance of accounts, despite inadequate evidence of such an agreement presented at trial, court nonetheless holds that credit union's "cancellation" of services constituted at most a breach of the inferred contract, for which relief from stay would not be required


Context: P 9 Here, in contrast, "the indictment ... made no reference, direct or implied," to facts that necessarily imply Robles could not have committed the charged offense without also having committed the lesser offense.

"[I]t is the charging document and not the evidence that determines the issue."

See Brown, 195 Ariz. 206, ¶ 10, 986 P.2d at 242 (“[I]t is the charging document and not the evidence that determines the issue.”); State v. Teran, 130 Ariz. 277, 279, 635 P.2d 870, 872 (App.1981) (“The test which determines the appropriateness of a lesser included instruction and verdict form by an analysis of the facts of a given case, i.e., the evidentiary test ... is not followed in Arizona.”); see also State v. Laffoon, 125 Ariz. 484, 487, 610 P.2d 1045, 1048 (1980) (“Often facts may support another lesser conviction but if not charged in the indictment, the lesser offense may not be found.”).

"Often facts may support another lesser conviction but if not charged in the indictment, the lesser offense may not be found."


"The test which determines the appropriateness of a lesser included instruction and verdict form by an analysis of the facts of a given case, i.e., the evidentiary test ... is not followed in Arizona."


Context: Indeed, every declaration currently before the Court supports FCPS. In short, Roberts' allegations are the type of fanciful allegations that no reasonable juror could believe.

"Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial."

See id. at 587, 106 S.Ct. 1348 (“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”) (internal quotation omitted); Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (“The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff’); see also Clinchfield Coal Co., 124 F.3d at 640 (“Fanciful inferences and bald speculations of the sort no rational trier of fact would draw or engage in at trial need not be drawn or engaged in at summary judgment.”); D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998) (to avoid summary judgment, the nonmoving party “must offer some hard evidence that its version of the events in question is not wholly fanciful.”).

"Fanciful inferences and bald speculations of the sort no rational trier of fact would draw or engage in at trial need not be drawn or engaged in at summary judgment."


to avoid summary judgment, the nonmoving party "must offer some hard evidence that its version of the events in question is not wholly fanciful."


Context: While the court recognizes that a statutory redemption period may extend the Debt- or's right to cure the default under SS 1322(c)(1), West Virginia law does not have such a redemption period, and therefore, the Debtor's right to cure the default ends at the foreclosure sale. See Colon v. Option One Mortg.

stating that a debtor's right to cure a home mortgage after foreclosure survives if the state allows a statutory period of redemption

Corp., 319 F.3d 912, 920 (7th Cir.2003) (stating that a debtor’s right to cure a home mortgage after foreclosure survives if the state allows a statutory period of redemption); contra, Cain v. Wells Fargo Bank, N.A (In re Cain), 423 F.3d 617, 620 (6th Cir.2005) (providing that the Bankruptcy Code precludes a cure of a home mortgage after a foreclosure sale based solely on a mortgagee’s statutory right of redemption). In short, after a foreclosure sale is complete under West Virginia law, a debtor has no right — based solely on state law — to redeem the property and cure the previous default.

providing that the Bankruptcy Code precludes a cure of a home mortgage after a foreclosure sale based solely on a mortgagee's statutory right of redemption


Context: Significant differences in opinion clearly exist amongst the Circuits that now have ruled on the issue of whether double jeopardy attaches in a civil forfeiture proceeding to bar a subsequent criminal prosecution for the same offense.

See United States v. Tilley, 18 F.3d 295 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994) (double jeopardy does not attach in civil forfeiture to bar subsequent criminal action); United States v. Clementi, 70 F.3d 997 (8th Cir.1995) (same); but see 405, 33 F.3d 1210 (9th Cir.1994) (civil forfeiture constitutes punishment which bars subsequent criminal prosecution as double jeopardy); United States v. Baird, 63 F.3d 1213 (3d Cir.1995) (separate opinion of Sarokin, J.) (civil forfeiture should constitute punishment for double jeopardy purposes); also compare United States v. Ursery, 59 F.3d 568 (6th Cir.1995) (forfeiture of property used to facilitate drug crimes is punishment for purposes of double jeopardy) with United States v. Salinas, 65 F.3d 551 (6th Cir.1995) (forfeiture of drug proceeds does not constitute punishment for purposes of double jeopardy).


Context: Furthermore, a breach of the duty to assist in this case would not be an error of the sort that should be contemplated in the CUE analysis because the original RO decision in 1972 is not final for purposes of appeal. A claim of CUE is a collateral attack that can only be made on a final RO or Board decision, see id. at 1380-81, and generally, rating decisions by the VA are deemed "final and binding ... as to conclusions based on the evidence on file at the time the VA issues written notification" of a decision, 38 C.F.R. SS 3.104(a). In cases of grave procedural error, however, the Court of Appeals for Veterans Claims has consistently held that RO or Board decisions are not final for purposes of direct appeal.

holding that where the Board did not mail decision in accordance with the provisions of 38 U.S.C. SS 7104(e), the period within which to appeal to the Court of Appeals for Veterans Claims did not commence to run

See Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) (concluding that “where VA has failed to procedurally comply with statutorily mandated requirements, a claim does not become final for purposes of appeal to the [Court of Appeals for Veterans Claims]”); Hauck v. Brown, 6 Vet.App. 518, 519 (1994) (holding that where an appellant “never received notification of any denial ..., the one-year period within which to file an NOD, which commences with ‘the date of mailing of notice of the result of initial review or determination,’ did not begin to run”); Kuo v. Derwinski, 2 Vet.App. 662, 666 (1992) (stating that where an appellant and his representative had not properly been furnished with a Statement of the Case, the period in which to appeal the adjudicative determination in question never commenced to run and that determination was not final); see also Ashley v. Derwinski, 2 Vet.App. 307, 311 (1992) (holding that where the Board did not mail decision in accordance with the provisions of 38 U.S.C. § 7104(e), the period within which to appeal to the Court of Appeals for Veterans Claims did not commence to run). A breach of the duty to assist in which the VA failed to obtain pertinent SMRs specifically requested by the claimant and failed to provide the claimant with notice explaining the deficiency is a procedural error of, at least, comparable gravity that vitiates the finality of an RO decision for purposes of direct appeal.

concluding that "where VA has failed to procedurally comply with statutorily mandated requirements, a claim does not become final for purposes of appeal to the [Court of Appeals for Veterans Claims]"


holding that where an appellant "never received notification of any denial ..., the one-year period within which to file an NOD, which commences with 'the date of mailing of notice of the result of initial review or determination,' did not begin to run"


stating that where an appellant and his representative had not properly been furnished with a Statement of the Case, the period in which to appeal the adjudicative determination in question never commenced to run and that determination was not final


Context: We reject the state's contention that Jensen's claims do not involve the deprivation of substantial rights protected by the section 2254 habeas corpus mechanism.

state prisoners' allegations that corrections officials acted unconstitutionally in depriving them of good time credits deemed "just as close to the core of habeas corpus as an attack on the prisoner's conviction"

See Preiser v. Rodriguez, 411 U.S. 475, 487-489, 93 S.Ct. 1827, 1835-1836, 36 L.Ed.2d 439 (1973) (state prisoners’ allegations that corrections officials acted unconstitutionally in depriving them of good time credits deemed “just as close to the core of habeas corpus as an attack on the prisoner’s conviction”).

when a state created a statutory right to good time credit, prisoner's interest is embraced within Fourteenth Amendment "liberty" to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause

See also Wolff v. McDonnell, supra, 418 U.S. at 555-558, 94 S.Ct. at 2974-2975 (when a state created a statutory right to good time credit, prisoner’s interest is embraced within Fourteenth Amendment “liberty” to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause).


Context: First, the officers' insistence that Mrs. James accompany her daughter to the hospital would not cause a reasonable person to feel powerless to decline the officers' request or otherwise terminate the encounter. Indeed, the Supreme Court has repeatedly rejected the notion that a seizure occurs when an officer approaches a citizen to ask questions or make requests.

"The Supreme Court has made clear that a Fourth Amendment 'seizure does not occur simply because a police officer approaches an individual and asks a few questions.' " (quoting Bostick, 501 U.S. at 434, 111 S.Ct. 2382

See, e.g., Drayton, 536 U.S. at 203-04, 122 S.Ct. 2105 (no seizure when three officers boarded a bus and began questioning passengers); Bostick, 501 U.S. at 434-35, 111 S.Ct. 2382 (no seizure when two officers approached a citizen on a bus and requested his consent to search his luggage); Mendenhall, 446 U.S. at 555, 100 S.Ct. 1870 (no seizure when two DEA agents approached a citizen at an airport and requested identification and her airline ticket); see also Crandell, 554 F.3d at 84 (“The Supreme Court has made clear that a Fourth Amendment ‘seizure does not occur simply because a police officer approaches an individual and asks a few questions.’ ” (quoting Bostick, 501 U.S. at 434, 111 S.Ct. 2382)).


no seizure when two officers approached a citizen on a bus and requested his consent to search his luggage


no seizure when two DEA agents approached a citizen at an airport and requested identification and her airline ticket


Context: Nevertheless, each inquiry "might be subsidiary to a question embracing both -- Was there a taking?" Id. Thus, plaintiffs' position that the WARA effected a taking in two different ways reflects their advancement of "separate arguments in support of a single claim," rather than separate claims.

determining that the government effected both physical and regulatory takings of the plaintiffs' property

Id. at 535, 112 S.Ct. 1522; see also Acceptance Ins. Cos., 583 F.3d at 854 (“A ‘taking’ may occur either by physical invasion or by regulation.” (emphasis added)); cf. Estate of Hage, 82 Fed.Cl. at 211-13 (determining that the government effected both physical and regulatory takings of the plaintiffs’ property).

"A 'taking' may occur either by physical invasion or by regulation." (emphasis added


Context: However, the jury could have fairly concluded the assault on Buford was part of a continuous chain of events that started when appellants were across the street planning to enter the presumably (at 3 a.m.) occupied house.

reasonable jury could have found that shootings [or a stabbing] were "a means of facilitating the successful completion of the armed burglary, and that the burglary and the [stabbing] were 'all part of one continuous chain of events' "

See Lee v. United States, 699 A.2d 373, 386 (D.C.1997) (reasonable jury could have found that shootings [or a stabbing] were “a means of facilitating the successful completion of the armed burglary, and that the burglary and the [stabbing] were ‘all part of one continuous chain of events’ ”) (citation omitted); see also Price v. United States, 813 A.2d 169, 176-77 (D.C.2002) (evidence sufficient for aiding and abetting where appellant arrived with two companions, who had visible guns, and remained with them as one made threats to kill and the other shot two people).


Context: We agree with the trial court's conclusion that King failed to show that trial counsel rendered ineffective assistance with respect to this matter. As an initial point, we note that we previously considered and rejected the merits of King's Batson challenge on direct appeal.

Id. at 230 (citing Fotopoulos v. State, 608 So.2d 784, 788 (Fla. 1992); Bowden v. State, 588 So.2d 225, 229 (Fla. 1991)); see also Rice v. Collins, 546 U.S. 333, 341, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (concluding that it was reasonable for the trial court to accept as race-neutral reasons for striking a minority female juror the facts that she was nineteen years old, single, lacked ties to the community, and might be too tolerant of the crimes at issue); cf. Nowell v. State, 998 So.2d 597, 604-05 (Fla. 2008) (holding that the State’s age-based justification for exercising a strike was pretextual in that case, but noting that a juror’s age can be a relevant consideration when evaluating the genuineness of a proffered justification).

holding that the State's age-based justification for exercising a strike was pretextual in that case, but noting that a juror's age can be a relevant consideration when evaluating the genuineness of a proffered justification


Context: The Fourth Circuit concluded: "[I]n light of Duncan and its progeny, it is appropriate to focus on the maximum penalty authorized by statute in determining if a crime is 'serious' for involuntary medication purposes. Such an approach respects legislative judgments regarding the severity of the crime . . . while at the same time giving courts an objective standard to apply . . . ." (Citations omitted.)

"the seriousness of the crime and [the defendant's] perceived dangerousness to society are evident from the substantial sentence [that the defendant] faces if convicted"

Id.; see also United States v. Green, supra, 532 F.3d 549 (“the maximum statutory penalty is the most objective means of determining the seriousness of a crime and the standard we adopt”); cf. United States v. Gomes, supra, 387 F.3d 160 (“the seriousness of the crime and [the defendant’s] perceived dangerousness to society are evident from the substantial sentence [that the defendant] faces if convicted”); but cf. United States v. Hernandez-Vasquez, supra, 513 F.3d 919 (“Although the sentencing guidelines no longer are mandatory, they are the best available predictor of the length of a defendant’s incarceration.

"the maximum statutory penalty is the most objective means of determining the seriousness of a crime and the standard we adopt"


Context: Ms. Ramsey first argues that the district court failed to recognize that LCMC's reasons for the termination have shifted over time, which is evidence tending to show pretext.

holding that inconsistency in employer's reasons for the termination is an indication of pretext

See Whittington v. Nordam Group Inc., 429 F.3d 986, 994 (10th Cir.2005) (holding that inconsistency in employer’s reasons for the termination is an indication of pretext); see also Plotke, 405 F.3d at 1104 (holding that conflicting and changing evidence concerning the timing and reasons for termination contributes to a showing of pretext). Ms. Ramsey points out that Mr. Mahoney initially told her that her department was being restructured.


Context: Besides, the circumstances of the rape of Makant's daughter differed markedly from the kidnapping, rape and murder in this case. It cannot be said that Makant's behavior in the. jury room rose to the level of juror misconduct.

jurors' limited discussion of news story about murder of state's witness did not provide basis for new trial

See also Oliver v. State, 265 Ga. 653, 654 (3) (461 SE2d 222) (1995) (jurors’ limited discussion of news story about murder of state’s witness did not provide basis for new trial).

See Hilburn v. Hilburn, 163 Ga. 23, 24 (135 SE 427) (1926) (jurors must bring their life experiences to the jury room).


Context: Courts in other jurisdictions have also described the denial of the right to a jury trial as structural error.

finding that the defendant's attorney's waiver of a jury trial was structural error requiring automatic reversal of the defendant's conviction

See, e.g., Miller v. Dormire, 310 F.3d 600, 604 (8th Cir. 2002) (finding that the defendant’s attorney’s waiver of a jury trial was structural error requiring automatic reversal of the defendant’s conviction); State v. Baker, 217 Ariz. 118, 170 P.3d 727, 731 (Ct.App.2007) (holding that where the record showed neither that the trial court explained to the defendant his right to a jury trial nor an effective waiver of the right, structural error occurred); People v. Collins, 26 Cal.4th 297, 109 Cal.Rptr.2d 836, 27 P.3d 726, 736 (2001) (finding that the trial court’s improper inducement of a jury-trial waiver amounted to a structural defect); cf., e.g., Spytma v. Howes, 313 F.3d 363, 372 (6th Cir.2002) (suggesting that a jury waiver issue was “arguably not subject to harmless error analysis”); United States v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th Cir.1997) (“[W]e conclude that this error warrants reversal because the district court’s failure to ensure the adequacy of [the defendant’s] jury waiver affected the basic framework of [the defendant’s] trial and we cannot determine whether this effect was harmless.”); Edwards v. Sasser, 462 F.Supp. 374, 378 (E.D.Va.1979) (“Denial of the right to trial by jury cannot be deemed harmless error.”); Balbosa v. State, 275 Ga. 574, 571 S.E.2d 368, 369 (2002) (“We are of the opinion that a harmless error analysis cannot be applied to a jury trial waiver.”); State v. Simpson, 29 Kan.App.2d 862, 32 P.3d 1226, 1233 (2001) (declining to say that the failure to advise a defendant of the right to a twelve-person jury was harmless); State v. Hauk, 257 Wis.2d 579, 652 N.W.2d 393, 404 n. 9 (Ct.App.2002) (refusing to engage in harmless-error analysis where there was no valid jury waiver).

suggesting that a jury waiver issue was "arguably not subject to harmless error analysis"


"[W]e conclude that this error warrants reversal because the district court's failure to ensure the adequacy of [the defendant's] jury waiver affected the basic framework of [the defendant's] trial and we cannot determine whether this effect was harmless."


"Denial of the right to trial by jury cannot be deemed harmless error."


"We are of the opinion that a harmless error analysis cannot be applied to a jury trial waiver."


declining to say that the failure to advise a defendant of the right to a twelve-person jury was harmless


refusing to engage in harmless-error analysis where there was no valid jury waiver


holding that where the record showed neither that the trial court explained to the defendant his right to a jury trial nor an effective waiver of the right, structural error occurred


finding that the trial court's improper inducement of a jury-trial waiver amounted to a structural defect


Context: See Mendoza v. U.S. Atty. While we generally have jurisdiction to review final orders of removal, the petition for review must be filed within 30 days of the date of the final order of removal. Immigration and Nationality Act ("INA") SS 242(b)(1), 8 U.S.C. SS 1252(b)(1). The statutory time limit for filing a direct petition for review in an immigration case is "mandatory and jurisdictional, and is not subject to equitable tolling."

holding that the finality of a BIA order is not affected by the subsequent filing of a motion to reconsider pursuant to 8 C.F.R. SS 1003.2(b

See INA § 242(a)(1), 8 U.S.C. § 1252(a)(1); cf. Stone, 514 U.S. at 405-06, 115 S.Ct. at 1549 (holding that the finality of a BIA order is not affected by the subsequent filing of a motion to reconsider pursuant to 8 C.F.R. § 1003.2(b)).

construing the former 90-day period for filing a petition for review under INA SS 106(a)(1), 8 U.S.C. SS 1105a(a

Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 1549, 131 L.Ed.2d 465 (1995) (construing the former 90-day period for filing a petition for review under INA § 106(a)(1), 8 U.S.C. § 1105a(a)). A motion to reopen filed with the BIA does not suspend the finality of the underlying BIA order and does not toll the review period.


Context: There is no disagreement that the defendant was stopped, detained, and searched. The warrant having been invalid, the Commonwealth has the burden of proving, by a preponderance of the evidence, an applicable exception to the warrant requirement.

generally, "preliminary questions of fact [in criminal cases] need only be proved by a preponderance of the evidence"

Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974) (“where, as here, the search is without a warrant the burden of establishing its reasonableness is on the Commonwealth’’); see Care and Protection of Laura, 414 Mass. 788, 791-92 (1993) (generally, “preliminary questions of fact [in criminal cases] need only be proved by a preponderance of the evidence”).

"where, as here, the search is without a warrant the burden of establishing its reasonableness is on the Commonwealth''


Context: Defendants constitutionally may allow the Praying Parents to enjoy the same access to school property and school resources as other non-religious groups are allowed. Thus, if non-religious groups are allowed to meet on school property, have access to teachers' mailboxes, send flyers home with students, and advertise their activities in the Eagle Eye, then Praying Parents are entitled to similar consideration, otherwise Lakeview may demonstrate hostility to religion and violate the First Amendment through unreasonable viewpoint discrimination.

Cf. Good News Club, 583 U.S. at 117 n. 7, 121 S.Ct. 2093 (distinguishing Schempp which found an Establishment Clause violation where challenged activity occurred during the school day).

"The Good News Club seeks nothing more than to be treated neutrally and given access to speak about the same topics as are other groups."

See Good News Club, 533 U.S. at 106-107, 114, 121 S.Ct. 2093 (“The Good News Club seeks nothing more than to be treated neutrally and given access to speak about the same topics as are other groups.”); Rosenberger v. University of Virginia, 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (“Discrimination against speech because of its message is presumed to be unconstitutional.”); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394-395, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (holding school board could not deny church right to show film on school property where permission was denied solely because film dealt with an otherwise permissible subject from a religious standpoint); Rusk, 379 F.3d at 424; Daugherty, 116 F.Supp.2d at 908. But Lakeview administrators cannot constitutionally favor the Praying Parents over non-religious groups or give the Praying Parents -special privileges that other groups do not receive, such as permitting meetings on school property during school hours and providing a link on Lakeview’s website.


"Discrimination against speech because of its message is presumed to be unconstitutional."


holding school board could not deny church right to show film on school property where permission was denied solely because film dealt with an otherwise permissible subject from a religious standpoint


Context: The district court properly dismissed Gonzalez's retaliation and failure-to-protect claims because Gonzalez failed to allege facts sufficient to state a plausible claim.

See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are liberally construed, a plaintiff must still present factual allegations sufficient to state a plausible claim for relief); see also Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (a prison official is deliberately indifferent only if he “knows of and disregards an excessive risk to inmate ... safety”); Starr v. Baca, 652 F.3d 1202, 1207-8 (9th Cir. 2011) (requirements for establishing supervisory liability); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (setting forth elements of retaliation claim in prisoner context).

a prison official is deliberately indifferent only if he "knows of and disregards an excessive risk to inmate ... safety"


Context: Both the Supreme Court and this court have, prior to Lopez, concluded that congressional efforts at protecting endangered and migratory species are constitutional under the Commerce Clause.

discussing Eagle Protection Act and Migratory Bird Treaty Act and noting that the "assumption that the national commerce power does not reach migratory wildlife is clearly flawed"

See Andrus v. Allard, 444 U.S. 51, 63 n. 19, 100 S.Ct. 318, 325 n. 19, 62 L.Ed.2d 210 (1979) (discussing Eagle Protection Act and Migratory Bird Treaty Act and noting that the “assumption that the national commerce power does not reach migratory wildlife is clearly flawed”); Leslie Salt Co. v. United States, 896 F.2d 354, 360 (9th Cir.1990) (“Leslie I”) (“The commerce clause power ... is broad enough to extend [federal] jurisdiction to local waters which may provide habitat to migratory birds and endangered species.”), cert. denied, 498 U.S. 1126, 111 S.Ct. 1089, 112 L.Ed.2d 1194 (1991); id. at 361 n. 1 (Rymer, J., concurring) (“Congress does have power under the Commerce Clause to regulate wildlife and endangered species.”); Leslie Salt Co. v. United States, 55 F.3d 1388, 1396 (9th Cir.) (noting “broad sweep of the Commerce Clause” and declining to reconsider Leslie I), cert. denied, — U.S. -, 116 S.Ct. 407, 133 L.Ed.2d 325 (1995); see also Hughes v. Oklahoma, 441 U.S. 322, 329-36, 99 S.Ct. 1727, 1732-36, 60 L.Ed.2d 250 (1979) (holding that state regulations of intrastate wildlife are within dormant Commerce Clause).


"The commerce clause power ... is broad enough to extend [federal] jurisdiction to local waters which may provide habitat to migratory birds and endangered species."


noting "broad sweep of the Commerce Clause" and declining to reconsider Leslie I


Context: Even when state officials fail to offer an authoritative interpretation of a state statute, a federal court considering a pre-enforcement challenge sometimes will presume a narrowing construction to which the law is fairly susceptible. In this case, however, we discern no plausible narrowing construction---and the Attorney General has pointed to none. Because construing the statute to exempt the Association's planned activity requires discarding wholesale the prohibition on commercial solicitation, the only practical way for the Attorney General to assuage a reasonable fear of prosecution would be to disclaim, in categorical terms, any intent to enforce the prohibition on commercial solicitation.

"Because it is clear to whom these provisions of the Act would be applied were they to be applied at all, the imminent threat of such prosecutions can be deemed speculative only if it is likely that the government may simply decline to enforce these provisions at all."

See Navegar, Inc. v. United States, 103 F.3d 994, 1000 (D.C.Cir.1997) (“Because it is clear to whom these provisions of the Act would be applied were they to be applied at all, the imminent threat of such prosecutions can be deemed speculative only if it is likely that the government may simply decline to enforce these provisions at all.”); New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1502 (10th Cir.1995) (permitting case to proceed because state had “not affirmatively disavowed any intention of bringing criminal prosecution” under the challenged statute); see also Hallandale Prof. Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 760 (11th Cir.1991) (finding a justiciable controversy when “[a]ll that remained between the plaintiff and the impending harm was the defendant’s discretionary decision—which could be changed—to withhold prosecution”).

finding a justiciable controversy when "[a]ll that remained between the plaintiff and the impending harm was the defendant's discretionary decision--which could be changed--to withhold prosecution"


permitting case to proceed because state had "not affirmatively disavowed any intention of bringing criminal prosecution" under the challenged statute


Context: Applying Chilicky, we have held that where Congress has provided some mechanism for relief that it considers adequate to remedy constitutional violations, Bivens claims are precluded.

Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 198 (9th Cir.1995) (denying Bivens claim to civilian employee of the Navy because Title VII provides the exclusive judicial remedy for claims of discrimina tion in federal employment); Bricker v. Rockwell Int'l Corp., 22 F.3d 871, 878 (9th Cir.1993) (denying a Bivens claim to an employee at the Hanford Nuclear Reservation because administrative procedures included a grievance procedure with arbitration as a final step, and the opportunity to file a formal complaint with the DOE, which it must investigate); Berry v. Hollander, 925 F.2d 311, 313 (9th Cir.1991) (denying a Bivens claim to a VA physician because he was subject to the regulations of the Department of Medicine and Surgery); see also Kotarski v. Cooper, 866 F.2d 311, 312 (9th Cir.1989) (administrative remedies available under the Civil Service Reform Act to a probationary employee, although discretionary, were adequate to preclude a Bivens claim).


denying a Bivens claim to an employee at the Hanford Nuclear Reservation because administrative procedures included a grievance procedure with arbitration as a final step, and the opportunity to file a formal complaint with the DOE, which it must investigate


denying a Bivens claim to a VA physician because he was subject to the regulations of the Department of Medicine and Surgery


Context: Although parents may pursue their claims while the child's claim is barred due to minority, the claims of the parents are not derivative of their child's claim and may be barred while the child's is still assertable.

holding that, although the statute of limitations ran on the parents' action, the child could bring action after majority was reached

Id. at 88, 89 (citing Hathi v. Krewstown Park Apartments, 385 Pa.Super. 613, 561 A.2d 1261, 1262 (1989) (holding that parents were not entitled to use infancy tolling provisions and that the statute of limitations barred their claims)); see also Fancsali v. Univ. Health Ctr. of Pittsburgh, 563 Pa. 439, 761 A.2d 1159 (2000) (holding that, although the statute of limitations ran on the parents’ action, the child could bring action after majority was reached).


Context: The court's discussion, quoted above, reveals that the court concluded that Mother failed to provide the Children with a safe environment, and that the termination of Mother's parental rights is in the Children's best interests.

holding that a parent's love of her child, alone, does not preclude a termination

Id. at 6. The court found that although the Children have a bond with Mother, the bond is not necessarily meaningful or healthy. Id. at 7. See In re T.S.M., 620 Pa. 602, 71 A.3d 251, 268 (2018) (stating that the strong parent-child bond was an unhealthy one that could not by itself serve as grounds to prolong foster care drift); see also In re L.M., 923 A.2d 505, 512 (Pa.Super.2007) (holding that a parent’s love of her child, alone, does not preclude a termination). The court also noted that the Children are no longer in harnfs way, which is allowing them “to grow and develop.”


Context: . Although the DiSabatino court did not discuss the language of the release in its opinion, the defendant in that case argued that the release barred the plaintiff's action and the court ruled that the action could proceed. Other courts have suggested that the scope of the release might be irrelevant to the plaintiff's remedies.

when a plaintiff seeks to stand by a fraudulently-induced settlement agreement and sue for fraud, "it is of no importance ... what claims the release purported to discharge."

See Bilotti, 188 A.2d at 33 (when a plaintiff seeks to stand by a fraudulently-induced settlement agreement and sue for fraud, “it is of no importance ... what claims the release purported to discharge.”); cf. Ware, 311 P.2d at 320 (defrauded tort plaintiff may "waive his right to rescind and sue to recover any damages suffered by reason of the fraud”).

defrauded tort plaintiff may "waive his right to rescind and sue to recover any damages suffered by reason of the fraud"


Context: Some decisions have concluded that the juror misconduct was sufficiently prejudicial to warrant a reversal of the conviction. Others have not.

the Alabama Supreme Court, in reversing this Court's holding, stated that the extraneous information introduced by the juror's improper viewing of the crime scene was beneficial to the defense and, therefore, did not warrant the granting of a new trial

See Ex parte Dawson, 710 So.2d 472 (Ala.1997) (the Alabama Supreme Court, in reversing this Court’s holding, stated that the extraneous information introduced by the juror’s improper viewing of the crime scene was beneficial to the defense and, therefore, did not warrant the granting of a new trial); see also Knight v. State, [710 So.2d 511 (Ala.Cr.App.1997)] (defendant failed to present any evidence to support his contention that he was prejudiced by a juror’s independent experiment and the subsequent extraneous information because the investigation tended to bolster his theory of defense, rather than prejudice it); Reed v. State, [547 So.2d 594 (Ala.Crim.App.1988)].

defendant failed to present any evidence to support his contention that he was prejudiced by a juror's independent experiment and the subsequent extraneous information because the investigation tended to bolster his theory of defense, rather than prejudice it


Context: That practice has now been defined, in a number of recent decisions within this circuit, as requiring a contingency enhancement of 100 percent for the class of cases relevant here.

awarding enhancement of 100 percent and finding "that the attorney market in the District of Columbia requires contingency enhancements of 100% to 200%"

See, e.g., Thompson v. Kennickell, 710 F.Supp. 1, 6, 9 (D.D.C.1989) (awarding enhancement of 100 percent and finding “that the attorney market in the District of Columbia requires contingency enhancements of 100% to 200%”); Palmer v. Shultz, 679 F.Supp. at 74 (“at least 100 percent” for fully contingent cases); Broderick v. Ruder, Civ. No. 86-1834, Mem. Op. at 4 (D.D.C. Sept. 13, 1989) (awarding 100 percent enhancement); see also McKenzie, 875 F.2d at 336 (upholding a 50 percent enhancement, which plaintiff had not appealed, as permissible but describing it as “below the Title VII contingency enhancements typically awarded in this circuit”).

upholding a 50 percent enhancement, which plaintiff had not appealed, as permissible but describing it as "below the Title VII contingency enhancements typically awarded in this circuit"


Context: However, Rule 23(c)(4) is not a stand-alone clause. It does not permit plaintiffs to ignore the requirements of 23(a) or (b). Plaintiffs cannot sever issues in an attempt to circumvent Rule 23(b) requirements.

"Rule 23(c)(4) issue certification is allowed only if the Rule 23(b) requirements are first met as to the claim and the court has done a searching analysis of plaintiffs' cause of action as a whole..."

See In re Vioxx Prod. Liab. Litig., 239 F.R.D. 450, 462 (E.D.La.2006) (disallowing “creative use of bifurcation” to sever individual causation and damages issues because the “cause of action, as a whole, must satisfy the predominance requirement of (b)(3)”); see also In re Katrina Canal Breaches Consol Litig., No. CIV A 05-4182, 2007 WL 2363135, at *1 (E.D.La. Aug. 16, 2007) (“Rule 23(c)(4) issue certification is allowed only if the Rule 23(b) requirements are first met as to the claim and the court has done a searching analysis of plaintiffs’ cause of action as a whole...”).

disallowing "creative use of bifurcation" to sever individual causation and damages issues because the "cause of action, as a whole, must satisfy the predominance requirement of (b


Context: Plaintiffs also allege that the USFS violated prior agreements by not seeking plaintiffs' comments and by ignoring plaintiffs' input before undertaking the activities that allegedly damaged the cultural value of the affected areas. These general factual allegations, if sufficient to state a claim, are sufficient to show injury-in-fact.

See Bennett, 520 U.S. at 168, 117 S.Ct. 1154 (“on a motion to dismiss, we presume that general allegations embrace those specific facts that are necessary to support the claim” (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130)); see also Mont. Wilderness Ass’n v. Fry, 310 F.Supp.2d 1127, 1151 (D.Mont.2004) (holding that the plaintiff had sufficiently alleged injury-in-fact based on impact to sites that the plaintiff had visited in the past and planned to revisit each year in the future).

"on a motion to dismiss, we presume that general allegations embrace those specific facts that are necessary to support the claim" (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130


Context: A number of courts have declined to grant stay relief to one claimant where, as here, the available insurance coverage was inadequate to compensate other similarly situated claimants.

in many cases, "[allowing one claimant to collect the policy proceeds in a state court judgment would deplete the insurance pool to the detriment of all remaining creditors"

See also In re Titan Energy, Inc., 837 F.2d 325, 330 (8th Cir.1988) (in many cases, “[allowing one claimant to collect the policy proceeds in a state court judgment would deplete the insurance pool to the detriment of all remaining creditors”).

See, e.g., Matter of Gatke Corp., 117 B.R. 406, 410 (Bankr.N.D.Ind.1990) (stay motion denied because insurance was not adequate to pay all claims); In re Davis, 730 F.2d 176, 185 (5th Cir.1984) (affirming the bankruptcy court’s decision to keep stay in place because “intact insurance coverage [i]s a bulwark against erosion of the estate”).


affirming the bankruptcy court's decision to keep stay in place because "intact insurance coverage [i]s a bulwark against erosion of the estate"


Context: In accordance with the collective bargaining agreement, the parties to the arbitration were Columbia and the Union. Because Katir was not a party to the arbitration, she lacks standing to petition to vacate the Award.

postal service employee whose discharge was the subject of the arbitration lacked standing under 9 U.S.C. SS 11 to seek modification of the arbitration award because the union and the Postal Service were the sole parties to the arbitration

Lofton v. U.S. Postal Service, 592 F.Supp. 36 (S.D.N.Y.1984); U.S. Postal Service v. American Postal Workers Union, 564 F.Supp. 545 (S.D.N.Y.1983) (postal service employee whose discharge was the subject of the arbitration lacked standing under 9 U.S.C. § 11 to seek modification of the arbitration award because the union and the Postal Service were the sole parties to the arbitration); seeAcuff v. United Papermakers & Paperworkers, AFL-CIO, 404 F.2d 169, 171, n. 2 (5th Cir.1968), cert. denied, 394 U.S. 987, 89 S.Ct. 1466, 22 L.Ed.2d 762 (1969) (employees whose grievances were denied lacked standing under 9 U.S.C. § 10 to seek to vacate the arbitration award because the union and the company, not the employees, were parties to the arbitration); cf. Dundas Shipping & Trading Co. v. Stravelakis Bros., 508 F.Supp. 1000, 1003 (S.D.N.Y.1981) (company which was not a party to the arbitration lacked standing to move to vacate the award).

employees whose grievances were denied lacked standing under 9 U.S.C. SS 10 to seek to vacate the arbitration award because the union and the company, not the employees, were parties to the arbitration


company which was not a party to the arbitration lacked standing to move to vacate the award


Context: With respect to the severity of the comment, the Court has difficulty concluding that Kidder's statement, while crude and demeaning, rose to the level of severity for which Title VII provides redress. Accordingly, this factor also weighs against Penn.

See Walker v. Mod-U-Kraf Homes, LLC, 988 F.Supp.2d 589, 595-96, 599-600, 2013 WL 6729525, at *5, 9 (W.D.Va. Dec. 19, 2013) (concluding that a co-workers comment to plaintiffs boyfriend that he should go up to where plaintiff was working if he wanted to receive oral sex and another occasion in which the coworker repeatedly said “wiener in your mouth, wiener in your mouth” to plaintiff and her boyfriend were not sufficiently severe); see also Sunbelt Rentals, 521 F.3d at 315 (explaining that isolated incidents (unless extremely seri ous) will not amount to discriminatory changes in the terms and conditions of employment); Hopkins v. Baltimore Gas 6 Elec. Co., 77 F.3d 745, 754 (4th Cir.1996) (observing that “Title VII was not designed to create a federal remedy for all offensive language and conduct in the workplace”).

concluding that a co-workers comment to plaintiffs boyfriend that he should go up to where plaintiff was working if he wanted to receive oral sex and another occasion in which the coworker repeatedly said "wiener in your mouth, wiener in your mouth" to plaintiff and her boyfriend were not sufficiently severe


observing that "Title VII was not designed to create a federal remedy for all offensive language and conduct in the workplace"


Context: In support, Dunn claimed that the information, police reports, and testimony from trial transcripts would establish that all of his charges occurred during a single criminal episode. He pointed out that he previously raised this claim, only to have it denied by the post-conviction court based on the erroneous finding that such a claim must be raised pursuant to rule 3.850, and that consideration under rule 3.850 would be impossible due to the two-year time bar.

holding that "a sworn motion pursuant to rule 3.850 is the appropriate method for resolution" of Hale issue

See also Speas v. State, 887 So.2d 416 (Fla. 2d DCA 2004) (noting that a Hale claim may be raised in a motion pursuant to rule 3.800(a)); but see Calla-way v. State, 642 So.2d 636 (Fla. 2d DCA 1994) (holding that “a sworn motion pursuant to rule 3.850 is the appropriate method for resolution” of Hale issue).


Context: Even assuming that Petitioner's trial counsel engaged in conduct that was deficient under Padilla such that the trial court's conclusion that Petitioner failed to satisfy the first Strickland prong was contrary to, or reflected an unreasonable application of, clearly established federal law, Petitioner's claim nonetheless fails because he has not demonstrated prejudice.

holding that, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed"

See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (holding that, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed”). “To determine whether the decision to proceed to trial rather than plead guilty would have been rational, courts first look to the weight of the evidence against the petitioner.”

noting that "the Second Circuit has often rejected ineffectiveness claims by determining that, in view of the strength of the prosecution's case, the defendant is unable to establish prejudice"

Francis, 2013 WL 673868, at *4; see also Boakye v. United States, No. 09 Civ. 8217(RWS), 2010 WL 1645055, at *4 (S.D.N.Y. Apr. 22, 2010) (noting that “the Second Circuit has often rejected ineffectiveness claims by determining that, in view of the strength of the prosecution’s case, the defendant is unable to establish prejudice”).


Context: The Second Circuit has stated that an allegedly counterfeit mark must be compared with the registered mark as it appears on actual merchandise to an average purchaser.

interpreting the federal customs law that prohibits importation of counterfeit merchandise and tracks the "substantially indistinguishable" definition of counterfeit in 15 U.S.C. SS 1127

See Montres Rolex, S.A. v. Snyder, 718 F.2d 524, 533 (2d Cir.1983) (interpreting the federal customs law that prohibits importation of counterfeit merchandise and tracks the “substantially indistinguishable” definition of counterfeit in 15 U.S.C. § 1127); see also GTFM, Inc. v. Solid Clothing Inc., No. 01 Civ. 2629(DLC), 2002 WL 1933729, at *2 (S.D.N.Y. Aug.21, 2002) (“There is nothing in the [Lanham] Act, however, which states that to determine whether a defendant is engaged in counterfeiting, one compares plaintiffs and defendant’s marks in the abstract, without considering how they appear to consumers in the marketplace.”).

"There is nothing in the [Lanham] Act, however, which states that to determine whether a defendant is engaged in counterfeiting, one compares plaintiffs and defendant's marks in the abstract, without considering how they appear to consumers in the marketplace."


Context: Applying Heller to the facts of this case, we conclude that the pipe bombs at issue were not protected by the Second Amendment. Unlike the handguns in Heller, pipe bombs are not typically possessed by law-abiding citizens for lawful purposes.

striking down the handgun ban because it "amounted] to a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society" for the lawful purpose of self-defense in the home, which "has been central to the Second Amendment right"

See United States v. Dempsey, 957 F.2d 831, 834 (11th Cir.1992) (adopting the Ninth Circuit’s reasoning that, “unlike firearms which may be used for sports, recreation or for collection, pipe bombs have no legitimate purpose”) (citing United States v. Loveday, 922 F.2d 1411, 1416 (9th Cir. 1991)); see also United States v. Fincher, 538 F.3d 868, 870, 873-74 (8th Cir.2008) (holding that, after Heller, the defendant’s possession of a machine gun and an unregistered sawed-off shotgun was not protected by the Second Amendment because those weapons were “not in common use by law-abiding citizens for lawful purposes and therefore [fell] within the category of dangerous and unusual weapons that the government can prohibit for individual use”), cert. denied, — U.S. -, 129 S.Ct. 1369, 173 L.Ed.2d 591 (2009); cf. Heller, 128 S.Ct. at 2817-18, 2821-22 (striking down the handgun ban because it “amounted] to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society” for the lawful purpose of self-defense in the home, which “has been central to the Second Amendment right”).

holding that, after Heller, the defendant's possession of a machine gun and an unregistered sawed-off shotgun was not protected by the Second Amendment because those weapons were "not in common use by law-abiding citizens for lawful purposes and therefore [fell] within the category of dangerous and unusual weapons that the government can prohibit for individual use"


Context: As noted, defendant's argument before the trial court was that the state had failed to satisfy the requirements of the exception. That did not preserve an argument that the case he had acknowledged as providing the relevant analysis was wrongly decided.

argument not preserved when "neither the state nor the trial court had any reason to believe that [the] defendant was" making that argument, "the state had no opportunity" to respond to it, "and the trial court had no reason to rule on that issue"

See State v. Lockridge, 282 Or App 414, 419, 386 P3d 96 (2016) (argument not preserved when “neither the state nor the trial court had any reason to believe that [the] defendant was” making that argument, “the state had no opportunity” to respond to it, “and the trial court had no reason to rule on that issue”); see also State v. Reyes-Camarena, 330 Or 431, 440, 7 P3d 522 (2000) (holding that the appellant failed to preserve a claim of error that was based on an argument that precedent was wrongly decided, where in the trial court, the appellant had conceded that the precedent was controlling).


Context: WCI claims that the district court's Case Management Order expressly limited discovery to the primary liability issues, namely CERCLA, the Spill Act, and breach of contract, and expressly stayed discovery on its state common law claims until after resolution of the threshold liability issues. While WCI raises a colorable claim, we nonetheless decline review of this issue, as WCI's claim is raised for the first time on appeal and is not preserved for appellate review.

recognizing that while "summary judgment is improper if the non-movant is not afforded a sufficient opportunity for discovery," it is the non-movant's responsibility to inform the district court of the need for discovery, by filing an affidavit pursuant to Rule 56(f

See Plott v. General Motors Corp., 71 F.3d 1190, 1195 (6th Cir.1995) (stating that this Court generally will not review a post-judgment claim asserting a need for discovery where the non-movant failed to advance such claim before the district court); see also Vance ex rel. v. United States, 90 F.3d 1145, 1149 (6th Cir.1996) (recognizing that while “summary judgment is improper if the non-movant is not afforded a sufficient opportunity for discovery,” it is the non-movant’s responsibility to inform the district court of the need for discovery, by filing an affidavit pursuant to Rule 56(f) of the Federal Rules of Civil Procedure or filing a motion requesting additional discovery).


Context: Unlike statutory deadlines that Congress intended to limit a court's jurisdiction, "[cjlaim-processing rules are court-promulgated rules, adopted by the Court for the orderly transaction of its business." Although they may not deprive, a court of jurisdiction to hear a case, such rules may still be "inflexible," and may require a court's strict compliance where the issue of timeliness has been properly raised.

Eberhart v. United States, 546 U.S. 12, 19, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005); United States v. Singletary, 471 F.3d 193, 196 (D.C.Cir.2006) (assuming that rule governing timeliness of appeals is a claim-processing rule, appeal still must be dismissed because government properly objected to untimeliness). Nonetheless, “failure to object to untimely submissions” may result in “forfeiture of the objection .... ” Eberhart, 546 U.S. at 18, 126 S.Ct. 403; see also Wilburn v. Robinson, 480 F.3d 1140, 1147 (D.C.Cir.2007) (“A party indisputably forfeits a timeliness objection based on a claim-processing rule if he raises the issue after the court has issued a merits decision.”).

"A party indisputably forfeits a timeliness objection based on a claim-processing rule if he raises the issue after the court has issued a merits decision."


Context: When the Bank refused Bradshaw's request to pay the taxes, Bradshaw could have resigned his position with HBP or refused to sign any checks and shut down the business.

the fact that a corporate officer might have been fired if he had disobeyed the CEO's orders to not pay withholding taxes did not make him any less responsible for payment of the taxes

See Howard, 711 F.2d at 734 (the fact that a corporate officer might have been fired if he had disobeyed the CEO’s orders to not pay withholding taxes did not make him any less responsible for payment of the taxes); Hochstein, 900 F.2d at 549 (even though controller of corporation might have been fired for paying withholding taxes, “these adverse consequences simply are no excuse for failing to collect and pay” them); cf. Raba, 977 F.2d at 945 (declining to hold that lack of check-signing authority is dispositive of lack of responsibility, noting that to so hold would “open the door to a host of evasive tactics[,] [o]fficers with otherwise unfettered authority simply would deprive themselves of permission to sign corporate cheeks in order to avoid the designation of ‘responsible person.’ ”).

declining to hold that lack of check-signing authority is dispositive of lack of responsibility, noting that to so hold would "open the door to a host of evasive tactics[,] [o]fficers with otherwise unfettered authority simply would deprive themselves of permission to sign corporate cheeks in order to avoid the designation of 'responsible person.' "


even though controller of corporation might have been fired for paying withholding taxes, "these adverse consequences simply are no excuse for failing to collect and pay" them


Context: An accused's right to a prompt inquiry into criminal charges is fundamental, and the charging authority has a duty under the Sixth Amendment to provide a prompt trial. However, the right to speedy trial does not attach where an arrest warrant has been issued but no other action taken.

But see State v. Snide, 144 Vt. 436, 442, 479 A.2d 139, 143 (1984) (time for computing speedy trial violation begins to run at date of citation) (dictum).

See United States v. Lovasco, 431 U.S. 783, 788-89, reh’g denied, 434 U.S. 881 (1977) (cannot dismiss indictment for undue delay where defendant was not yet arrested); United States v. MacDonald, 456 U.S. 1, 9 (1982); Morrissey v. Brewer, 408 U.S. 471, 480 (1972).


Context: It cannot be disputed that Count One's language sets out the generic elements of burglary. Indeed, we have considered several cases in which defendants pleaded guilty or nolo contendere to charging papers materially indistinguishable from those used to charge Velasco-Medina, and in each case we held that their convictions fit Taylor's generic definition.

noting that document charging that Franklin "did willfully and unlawfully enter ... with the intent to commit larceny" satisfied Taylor

See also Franklin, 235 F.3d at 1170 (noting that document charging that Franklin “did willfully and unlawfully enter ... with the intent to commit larceny” satisfied Taylor).

holding that Information charging burglary did not satisfy Taylor because of failure to allege "unlawful or unprivileged" entry

Cf. United States v. Parker, 5 F.3d 1322, 1325 (9th Cir.1993) (holding that Information charging burglary did not satisfy Taylor because of failure to allege “unlawful or unprivileged” entry).


Context: Ms. Nichols's extensive history as a marijuana smoker, including a number of prior experiences smoking marijuana with Ms. Durham, coupled with her consumption of the residue in question, rendered her testimony comparable to testimony which has been found to support a drug identification in other cases.

finding evidence sufficient to support drug identification based, in particular, on the identification of the substance as marijuana by two witnesses -- each with five to ten years experience smoking marijuana -- who had observed that the substance in question "looked, smelled, and smoked like marijuana"

See, e.g., United States v. Zielie, 734 F.2d 1447, 1456 (11th Cir.1984) (“The uncorroborated testimony of a person who observed a defendant in possession of a controlled substance is sufficient if the person is familiar with the substance at issue.”), abrogated on other grounds, United States v. Chestang, 849 F.2d 528, 531 (11th Cir.1988); State v. Neal, 624 S.W.2d 182 (Mo.App.1981); see also United States v. Murray, 753 F.2d 612, 615 (7th Cir.1985) (finding evidence sufficient to support drug identification based, in particular, on the identification of the substance as marijuana by two witnesses — each with five to ten years experience smoking marijuana — who had observed that the substance in question “looked, smelled, and smoked like marijuana”); People v. Partin, 254 Cal.App.2d 89, 62 Cal.Rptr. 59 (1967); cf. People v. McLean, 56 Cal.2d 660, 16 Cal.Rptr. 347, 365 P.2d 403 (1961).

"The uncorroborated testimony of a person who observed a defendant in possession of a controlled substance is sufficient if the person is familiar with the substance at issue."


Context: Mote stands for the proposition the campus as a whole, including classrooms, facilities, and buildings, must be open to the entire public for the outdoor areas to constitute a traditional public forum, even when the public has unfettered access to such outdoor areas. I emphatically disagree with Mote for the reasons described in this concurrence.

"[High] school facilities may be deemed to be public forums only if school authorities have 'by policy or by practice' opened those facilities for indiscriminate use by the general public."

See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (“[High] school facilities may be deemed to be public forums only if school authorities have ‘by policy or by practice’ opened those facilities for indiscriminate use by the general public.”) (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 47, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)); see also Faulkner, 410 F.3d at 766 (noting a public university campus may contain a variety of fora); Ala. Student Party, 867 F.2d at 1354 n. 6 (same).


Context: For this reason, the party moving for class certification bears the burden of establishing, by a preponderance of the evidence, the requirements set forth in RCFC 23.

in determining whether the requirements of class certification are met, the trial court must not inquire: "whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of the class action rule are met."

Filosa v. United States, 70 Fed.Cl. 609, 615 (2006) (“The party moving for class certification bears the burden of satisfying the requirements set forth in RCFC 23 by a preponderance of the evidence.”); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (in determining whether the requirements of class certification are met, the trial court must not inquire: “whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of the class action rule are met.”).

"The party moving for class certification bears the burden of satisfying the requirements set forth in RCFC 23 by a preponderance of the evidence."


Context: Here, it appears that the parties may have two different and competing interpretations of the relevant portions of the Agreement. Regardless, the Court need not consider this issue at this time, because the Court finds that ASI has failed to clearly demonstrate irreparable injury, and this alone precludes the issuance of a preliminary injunction.

"Absent a showing of irreparable harm, a plaintiff is not entitled to injunctive relief, even if the other three elements are found."

See Ferring Pharm., Inc., 765 F.3d at 219 (“Absent a showing of irreparable harm, a plaintiff is not entitled to injunctive relief, even if the other three elements are found.”); see also Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 197-98 (3d Cir. 1990) (placing particular emphasis on “likelihood of success on the merits” and “irreparable harm” as necessary “prerequisites” to obtaining a preliminary injunction).

placing particular emphasis on "likelihood of success on the merits" and "irreparable harm" as necessary "prerequisites" to obtaining a preliminary injunction


Context: We will reverse the district court because of an erroneous jury instruction only if we are left with a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations. Pursuant to the law of this Circuit, exclusive control over the object is not required in order to establish constructive possession.

See United States v. Knight, 705 F.2d 432, 433 (11th Cir.1983) (holding that constructive possession need not be exclusive but may be shared by others); see also United States v. Leonard, 138 F.3d 906, 909 (11th Cir.1998) (constructive possession defined as defendant’s ownership, dominion, or control over an object itself or dominion or control over the premises or the vehicle in which the object is concealed).

constructive possession defined as defendant's ownership, dominion, or control over an object itself or dominion or control over the premises or the vehicle in which the object is concealed


Context: The Motion for Judgment makes it clear that the allegations of slander, for which the Plaintiff wishes to hold the Defendant liable, are, in all instances, based upon statements made by agents of the Defendant. For the corporate defendant in the instant case to be liable, those statements must have been made by the agents within the scope of their agency.

"[A] corporation, as any other master, is liable in damages under the statute for insulting words uttered by its agent while engaged in the ordinary course of his employment... ."

See Thalhimer Bros. v. Shaw, 156 Va. 863, 875-76, 159 S.E. 87, 92 (1931) (court noted, in libel case, that master liable for negligent acts of servants while acting within the scope of their employment); cf. Jordan v. Melville Shoe Corp., 150 Va. 101, 107, 142 S.E. 387, 388 (1928) (“[A] corporation, as any other master, is liable in damages under the statute for insulting words uttered by its agent while engaged in the ordinary course of his employment... .”).


Context: In the Ninth Circuit, appeal waivers do not apply to constitutional challenges.

applying Bibler to plea agreement waiving right to bring SS 2255 motion

United States v. Bibler, 495 F.3d 621, 624 (9th Cir.2007) (appeal waiver does not apply to a sentence which is illegal because it exceeds the permissible statutory penalty for the crime or violates the Constitution); see also United States v. Snider, No. 3:07-CR-124-SI, 180 F.Supp.3d 780, 792-93 2016 WL 1453878, at *9 (D.Or. Apr. 13, 2016) (applying Bibler to plea agreement waiving right to bring § 2255 motion), appeal filed, No. 16-35316 (9th Cir. Apr. 28, 2016).


Context: There is no dispute that counsel filed the notice and claim of charging lien before the original final judgment was entered. Thus, counsel perfected his charging lien by providing timely notice.

"In order to give timely notice of a charging lien an attorney should either file a notice of lien or otherwise pursue the lien in the original action."

See Daniel Mones, P.A. v. Smith, 486 So.2d 559, 561 (Fla.1986) (“In order to give timely notice of a charging lien an attorney should either file a notice of lien or otherwise pursue the lien in the original action.”); see also Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1385 (Fla.1983) (“[T]here are no requirements for perfecting a charging lien beyond timely notice.”); Brown v. Vt. Mut. Ins. Co., 614 So.2d 574, 580 (Fla. 1st DCA 1993) (holding that to be “timely” the notice of a charging lien must be filed “before the lawsuit has been reduced to judgment”). Notwithstanding a lack of express reservation of jurisdiction over the charging lien, the trial court is not foreclosed from considering the charging lien in this action because the issue of attorney’s fees and costs has not been finalized and the trial court reserved jurisdiction for that purpose.

"[T]here are no requirements for perfecting a charging lien beyond timely notice."


holding that to be "timely" the notice of a charging lien must be filed "before the lawsuit has been reduced to judgment"


Context: Given our conclusion that the expert's testimony was not relevant under CRE 401, we necessarily reject defendant's argument that it was admissible as res gestae evidence.

See People v. Skufca, 176 P.3d 83, 86 (Colo.2008) (“[t]o be admissible, res gestae evidence must also be relevant under CRE 401”); see also People v. Ramirez, 156 P.3d 371, 378 (Colo.2007) (to be admissible under CRE 702, expert testimony must be both relevant and reliable).

"[t]o be admissible, res gestae evidence must also be relevant under CRE 401"


Context: 13B Wright, Miller & Cooper, Federal Practice and Procedure SS 3612 (2d ed.1984).

favoring ties that "could not be easily undone" over more easily established ties

Lundquist, 946 F.2d at 12 (“[D]omicile need not be determined by mere numerical comparison of the number of factors that may appear to favor each side of the issue.”); see also Leon v. Caribbean Hosp. Corp., 848 F.Supp. 317, 318 (D.P.R.1994) (favoring ties that “could not be easily undone” over more easily established ties).

"[D]omicile need not be determined by mere numerical comparison of the number of factors that may appear to favor each side of the issue."


Context: Blakely concerns aside, this aggravator is properly used to enhance a sentence only when the court explains with specific facts why treatment is needed beyond that provided by the presumptive sentence." Appellant's Br. at 13. We find Gutermuth's non -Blakely argument dispositive and conclude that this aggravating circumstance is improper given the lack of such an explanation in this case.

"This factor may be used to enhance a sentence above the presumptive only if the trial court provides a specific or individualized reason as to why the defendant requires correctional treatment in excess of the presumptive term."

See Hope v. State, 834 N.E.2d 713, 719 (Ind.Ct.App.2005) (“This factor may be used to enhance a sentence above the presumptive only if the trial court provides a specific or individualized reason as to why the defendant requires correctional treatment in excess of the presumptive term.”); see also Sheron v. State, 682 N.E.2d 552, 553 (Ind.Ct.App.1997) (“As a matter of jurisprudence, courts will not decide constitutional issues when a case can be decided on other grounds.”).

"As a matter of jurisprudence, courts will not decide constitutional issues when a case can be decided on other grounds."


Context: Gordon, Barry R. Sude, Ruth Ann Overbeek & Charles Hendricks, A Brief History of the American University Experiment Station and U.S. Navy Bomb Disposal School. American University (Office of History Headquarters, U.S. Army Corps of Engineers, June 1994) at 36. Thus, the Army had already made a decision to warn. Its failure to effectuate that decision properly was not itself the product of a policy decision.

See Cope, 45 F.3d at 452 (when Park Service already posted signs in an effort to warn, the placement of additional or different signs does not implicate economic, social, or political concerns); cf. Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (Coast Guard, having undertaken to provide lighthouse service, had a duty to use due care to make certain that the lighthouse was kept in good working order and to repair light or give warning that it was not functioning).


Context: When the office administrator's corroborated statement is considered for its non-hearsay purpose, this case squarely falls into the third category in which we have found tolling appropriate because the EEOC misled Alvarado about when he had to file suit (assuming, as we have, that the first letter triggered the limitations period).

providing that EEOC's misleading plaintiff about his rights is potential basis for equitable tolling

See Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 881 (5th Cir.2003) (providing that EEOC’s misleading plaintiff about his rights is potential basis for equitable tolling); Page v. U.S. Indus., Inc., 556 F.2d 346, 351 (5th Cir.1977) (finding that “equitable considerations” allowed plaintiff to pursue untimely action because EEOC letter indicating only that conciliation efforts had failed but not that EEOC had decided not to sue was “patently misleading”); see also Schlueter v. Anheuser-Busch, Inc., 132 F.3d 455, 458-59 (8th Cir.1998) (equitably tolling plaintiffs case when EEOC misled plaintiff into believing she had filed a charge but had mistakenly instructed her to fill out an intake questionnaire and also calculated the expiration of the 300-day filing period based on an incorrect date); Browning v. AT & T Paradyne, 120 F.3d 222, 227 (11th Cir.1997) (tolling statute of limitations when an EEOC investigator told plaintiff that incorrect statute of limitations applied).


tolling statute of limitations when an EEOC investigator told plaintiff that incorrect statute of limitations applied


finding that "equitable considerations" allowed plaintiff to pursue untimely action because EEOC letter indicating only that conciliation efforts had failed but not that EEOC had decided not to sue was "patently misleading"


Context: Federal prisoners who are injured by fellow inmates by reason of the negligence of federal employees can sue for their injuries under the Federal Tort Claims Act.

See United States v. Muniz, 374 U.S. 150, 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) (holding the United States liable under the FTCA for injuries sustained by a prisoner where the prison guard had confined an altercation between the prisoner and twelve fellow inmates instead of interceding); see also Plummer v. United States, 580 F.2d 72, 73, 77 (3d Cir.1978) (holding the United States liable under the FTCA for exposure of prisoners to prisoner with tuberculosis where the prisoners’ bodies “harbored one or more dormant tubercle bacilli which could later develop into full-fledged cases of tuberculosis”). However, plaintiff does not allege negligence.

holding the United States liable under the FTCA for exposure of prisoners to prisoner with tuberculosis where the prisoners' bodies "harbored one or more dormant tubercle bacilli which could later develop into full-fledged cases of tuberculosis"