Context: Given that judges are not only generally held to higher standards than lawyers, but, when acting in their official capacities, are performing official government functions, it is likely, when a judge is charged with the obstruction of the administration of justice due to the contents of a judicial opinion, that an even lower standard than a "substantial likelihood" of obstruction may apply.

"a legislator has no right to use official powers for expressive purposes"

See, e.g., Halleck, 427 F. Supp. at 1239 (“The ABA Code of Judicial Conduct, adopted by the Joint Committee on Judicial Administration in the District of Columbia, reflects the limits on a judge’s right of free speech.”) (footnote omitted); Rome, 542 P.2d at 684 (“For a judge the right to speak freely is circumscribed by the code of judicial conduct, just as that of the lawyer is subject to the code of professional responsibility, and first amendment rights do not exempt a judge from discipline for proven judicial misconduct.”); cf. Corrigan, 131 S. Ct. at 2351 (“a legislator has no right to use official powers for expressive purposes”).

"The ABA Code of Judicial Conduct, adopted by the Joint Committee on Judicial Administration in the District of Columbia, reflects the limits on a judge's right of free speech."


"For a judge the right to speak freely is circumscribed by the code of judicial conduct, just as that of the lawyer is subject to the code of professional responsibility, and first amendment rights do not exempt a judge from discipline for proven judicial misconduct."


Context: See M21-1MR, pt. However, this argument was not presented below, and Mr. Johnson fails to demonstrate the clear evidence of irregularity that is necessary to overcome the presumption of regularity that attaches to the actions of Government officials.

"The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties."

See Miley v. Principi, 366 F.3d 1343, 1347 (Fed.Cir.2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.”); Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001) (“The [presumption of regularity] doctrine thus allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary.”); cf. Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed.Cir.2009) (“Absent some challenge to the expertise of a VA expert ... [there is] no statutory or other requirement that VA must present affirmative evidence of a physician’s qualifications in every case as a precondition for the Board’s reliance upon that physician’s opinion.”); Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (Board must address only those issues raised by claimant or reasonably raised by record).

"Absent some challenge to the expertise of a VA expert ... [there is] no statutory or other requirement that VA must present affirmative evidence of a physician's qualifications in every case as a precondition for the Board's reliance upon that physician's opinion."


Board must address only those issues raised by claimant or reasonably raised by record


"The [presumption of regularity] doctrine thus allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary."


Context: . The Ninth Circuit has since switched sides. Presently, only the Eighth Circuit, which decided Barr, disagrees with the Seventh.

stating that six of the seven circuits that have addressed the issue have held that SS 5861(d

See United States v. Reyna, 130 F.3d 104, 108 (5th Cir.1997) (stating that six of the seven circuits that have addressed the issue have held that § 5861(d) requires proof that the defendant knows the characteristics of his sawed-off shotgun that bring it within the Act, with the 8th Circuit the only outlier); see also United States v. Michel, 446 F.3d 1122, 1129 (10th Cir.2006) (stating that “the government was required to present sufficient evidence that [the defendant] knew the firearm had a barrel length of less than eighteen inches”).

stating that "the government was required to present sufficient evidence that [the defendant] knew the firearm had a barrel length of less than eighteen inches"


Context: With these principles in mind, it seems to me the majority reads too much into Winter. In doing so, they take the minority position among circuits to have considered the issue.

See Alliance for the Wild Rock ies, 682 F.3d at 1134-35 (holding that a “serious questions” version of the sliding scale approach to preliminary injunctions survives Winter); Citigroup, 598 F.3d at 35-38 (2d Cir. 2010) (same); Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) (same); see also Revel AC, Inc. v. IDEA Boardwalk LLC, 802 F.3d 558, 569-71 (3d Cir. 2015) (applying sliding scale test for a stay pending appeal post-Winter).

holding that a "serious questions" version of the sliding scale approach to preliminary injunctions survives Winter


Context: "But this did not have the effect of nullifying the 1986 paternity judgment, which declared John to be the father; furthermore, it did not vest paternity in Randy. In regard to paternity and as to the parental relationship between John and the child, the name change was meaningless.

See also Stancill v. Stancill, 286 Md. 530, 535, 408 A.2d 1030 (1979) (a court may not be handcuffed in the exercise of its duty to act in the best interests of a child by any agreement between the parents).

See Carroll County v. Edelmann, 320 Md. 150, 175-76, 577 A.2d 14 (1990) (a court has no authority to terminate a parental relationship other than through a decree of adoption or guardianship). Even if it was the mother’s intent to terminate John’s child support payments by changing her child’s name, the result would be no different. In Stambaugh v. Child Support Admin., 323 Md. 106, 591 A.2d 501 (1991), we made clear that one parent may not waive his or her child’s right to support from the other parent.


Context: The BIA relied on both forms of notice, and did not state that either would have been individually adequate. If we were to find that either form of notice were problematic or deficient, agency law principles might require that the case be remanded to the BIA to determine whether the remaining notice was adequate.

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (stating federal courts will not affirm agency decisions based on reasoning not considered by the agency); cf. INS v. Orlando Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (requiring remand for agency determination in first instance of matters “that statutes place primarily in agency hands”).

requiring remand for agency determination in first instance of matters "that statutes place primarily in agency hands"


Context: The District Court's categorical denial of tolling is also incompatible with Delaware's apparent intent to encourage SS 220 actions as a way to allow stockholders to resolve disputes with the aid of a streamlined books and records proceeding. See Cal. State Teachers' Ret. Sys. v. Alvarez, CIV.

noting that "Section 220 proceedings are supposed to be streamlined and summary"

A. No. 7455, 2017 WL 239364, at *3 (Del. Jan. 18, 2017) (noting that “Section 220 proceedings are supposed to be streamlined and summary”); see also King v. VeriFone Holdings, Inc., 12 A.3d 1140, 1145 (Del. 2011) (noting that “Delaware courts have strongly encouraged stockholder-plaintiffs to utilize Section 220”).

noting that "Delaware courts have strongly encouraged stockholder-plaintiffs to utilize Section 220"


Context: At the charge conference, Faucette's and Schadler's only objection to this question was that the answers should have been separate for each of them. They did not complain that the instruction's measure of damages was improper or otherwise object to the instruction. Therefore, we measure the sufficiency of the evidence against the language in the charge.

Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000) (holding, when no objection is made to jury issue, sufficiency of the evidence is measured against charge given by court rather than some other unidentified law); Kroger Co. v. Brown, 267 S.W.3d 320, 323 (Tex.App.Houston [14th Dist.] 2008, no pet.) (measuring sufficiency of damages evidence against commonly understood meaning of undefined term used in charge); see also Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex.2007) (holding argument that charge submitted improper measure of damages was waived by failure to object in trial court); Tribble & Stephens Co. v. Consolidated Services, Inc., 744 S.W.2d 945, 949 (Tex.App.-San Antonio 1987, writ denied) (holding failure to raise issue of improper measure of damages in trial court waived review of complaints that proper measure of damages was not submitted to jury and that plaintiff failed to present evidence on the proper measure),


Context: The Court is cognizant of its statutory duty to take due account of the rule of prejudicial error. Based on the particular facts of this case, we cannot hold that the error was harmless because the Board has not yet adjudicated Mrs. Reliford's accrued benefits claim against the proper factual background.

"[A]ppellate tribunals are not appropriate fora for initial fact finding."

See Gambill v. Shinseki, 576 F.3d 1307, 1311 (Fed.Cir.2009) (per curiam) (“Harmless error is fully applicable to veterans’ claims cases, subject to the same principles that apply generally to harmless error analysis in other civil and administrative cases.”) (citing Sanders, 556 U.S. at 406, 129 S.Ct. 1696); Wagner v. United States, 365 F.3d 1358, 1365 (Fed.Cir.2004) (“Where the effect of an error on the outcome of a proceeding is unquantifiable, however, we will not speculate as to what the outcome might have been had the error not occurred.”); Bryant v. Shinseki, 23 Vet.App. 488, 498 (2010) (per curiam) (“[T]he assessment of prejudice generally is case specific, demonstrated by the appellant and based on the record.”); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed.Cir.2000) (“[A]ppellate tribunals are not appropriate fora for initial fact finding.”).

"Where the effect of an error on the outcome of a proceeding is unquantifiable, however, we will not speculate as to what the outcome might have been had the error not occurred."


Context: Several courts have held that a police officer's use of ethnic slurs, when coupled with use of excessive force, is sufficient to state an IIED claim. Indeed, at least one court has held that even in the absence of excessive force, allegations that a police officer uses ethnic slurs against arrestees suffice to state an IIED claim.

holding that motorist's allegation that racial epithet was used against him, coupled with officers' justifiable use of force, did not state IIED claim

But see Watkins v. City of Southfield, 221 F.3d 883, 890 (6th Cir.2000) (applying Michigan law) (holding that motorist’s allegation that racial epithet was used against him, coupled with officers’ justifiable use of force, did not state IIED claim).

See Kelly v. City of Minneapolis, 598 N.W.2d 657, 660-61, 663 (Minn.1999) (upholding jury verdict on IIED claim in favor of arrestees where officers used justifiable force but also used racial epithet and disparaging names).


Context: We cannot create a Bivens remedy if there are "indications that congressional action has not been inadvertent."

"[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies."

See Chilicky, 487 U.S. at 423, 108 S.Ct. at 2468 (“[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.”); Kotarski, 866 F.2d at 312 (“[s]o long as Congress’ failure to provide money damages, or other significant relief, has not been inadvertent, courts should defer to its judgment.”); cf. Bricker, 22 F.3d at 875 (failed bills “may suggest that Congress’s inaction, whatever its reasons, was not wholly inadvertent.”).

failed bills "may suggest that Congress's inaction, whatever its reasons, was not wholly inadvertent."


"[s]o long as Congress' failure to provide money damages, or other significant relief, has not been inadvertent, courts should defer to its judgment."


Context: The appellate court agreed that unresolved factual questions existed with regard to the existence of an emergency and the question of whether intoxication vitiated the consent requirement. Moreover, the amicus brief directs our attention to several cases that hold that alcohol intoxication can legally impair a patient's capacity to refuse medical treatment.

See Blackman v. Rifkin, 759 P.2d 54, 58 (Colo.App.1988) (intoxication coupled with head trauma permits emergency-room physicians to restrain patient and imply consent necessary to treat medical condition); Grannum, 70 Wash.2d at 307, 422 P.2d at 814; cf. State v. Hockenhull, 525 A.2d 926, 929 (R.I.1987) (intoxication may be grounds for diminished-capacity defense such that an assailant cannot form specific intent necessary to commit murder).


Context: We further note that our decision in Stephens v. State, also relying on the overreaching-by-the-State rationale, did not permit the State to rely on a defendant's unsuccessful request for a lesser-included-offense instruction on murder in rejecting the State's claim that double-jeopardy principles did not prevent it from prosecuting the defendant for murder after an appellate court had decided that the evidence was insufficient to support the aggravating element of the defendant's conviction for capital murder.

rejecting State's claim that "since it did not oppose [the defendant's] request for a lesser included offense instruction, that it should not be penalized for the trial court's failure to include the lesser offense in the charge to the jury"

See Stephens v. State, 806 S.W.2d 812, 817-18 (Tex.Cr.App.1990) (rejecting State’s claim that “since it did not oppose [the defendant’s] request for a lesser included offense instruction, that it should not be penalized for the trial court’s failure to include the lesser offense in the charge to the jury”); see also Ex Parte Feryl John Granger, 850 S.W.2d 513, 519-20 (Tex.Cr.App.1993) (distinguishing Stephens on basis that this Court in Stephens was “careful to point out repeatedly ... that at the original trial, the State had chosen not to request an instruction on the lesser included offense of rape. In other words, the State had, at the first trial, failed to pursue the lesser included offense charge after jeopardy had attached to it and was, therefore, forever barred from prosemtvng it again.”) (emphasis in original). In Stephens, the State was not permitted to rely on the defendant’s unsuccessful request for a lesser-included-offense instruction to make this instruction “applicable to the case.”

distinguishing Stephens on basis that this Court in Stephens was "careful to point out repeatedly ... that at the original trial, the State had chosen not to request an instruction on the lesser included offense of rape. In other words, the State had, at the first trial, failed to pursue the lesser included offense charge after jeopardy had attached to it and was, therefore, forever barred from prosemtvng it again."


Context: An enactment also may be regarded as "remedial in nature" if its object is to correct existing law, "to redress existing grievances[,] and to introduce regulations conducive to the public good."

holding "remedial in nature" the Interstate Agreement on Detainers Act of 1965

State v. Barnes, 273 Md. 195, 208, 328 A.2d 737 (1974)(holding “remedial in nature” the Interstate Agreement on Detainers Act of 1965). As such, remedial statutes “are to be liberally construed in order to advance the remedy and obviate the mischief.”

Id.; Coburn v. Coburn, 342 Md. 244, 256, 674 A.2d 951 (1995); see also Janda, 237 Md. at 171, 205 A.2d 228 (holding that statute would be applied retroactively when to do so would better effect the remedial intentions of the Legislature in enacting it.).


Context: [Citation.] Modem courts, however, have permitted conversion claims against intangible interests such as checks and customer lists.

Acme Paper Co. v. Goffstein, [supra,] 125 Cal.App.2d [at p.] 179 . . . ; Palm Springs-La Quinta Dev. Co. v. Kieberk Corp., 46 Cal.App.2d 234 [115 P.2d 548] (1941) (conversion of index cards with information on potential customers, including their financial standing); see Thrifty-Tel, Inc. v. Bezenek, 46 Cal.App.4th 1559 [54 Cal.Rptr.2d 468] (1996) (leaving open question whether confidential codes to gain computer access could be converted because trespass to personal property claim existed); see generally Kremen v. Cohen, [supra,] 337 E3d [at p.] 1030 . . . (noting modem rejection of hard line between tangible and intangible property and holding plaintiff could state conversion claim as to internet domain name). [][]... [][] Although there is no clear authority, the Court concludes that [the] Plaintiffs may state a conversion claim based upon the misappropriation of their Private Payment Information, which was then used to make allegedly unauthorized debits from their financial accounts.


Context: P 28 After our Supreme Court's announcement, this Court carved out a very limited exception to the general rule set forth in Grant, to address the specific situation where an appellant will not be able to challenge, in a collateral proceeding, her constitutional right to effective assistance of counsel because of the short duration of her sentence.

declining to apply Salisbury/Ingold exception, where appellant was sentenced to 90 days' imprisonment and a concurrent 3 years' probation and still had almost two years to litigate PCRA petition

But see Commonwealth v. Millward, 830 A.2d 991 (2003) (declining to apply Salisbury/Ingold exception, where appellant was sentenced to 90 days’ imprisonment and a concurrent 3 years’ probation and still had almost two years to litigate PCRA petition).

reviewing claim of ineffectiveness of counsel on direct appeal due to shortness of appellant's sentence

See also Commonwealth v. Duda, 831 A.2d 728 (2003) (reviewing claim of ineffectiveness of counsel on direct appeal due to shortness of appellant’s sentence); Commonwealth v. Ingold, 823 A.2d 917 (Pa.Super.2003), appeal denied, — Pa. -, 832 A.2d 435 (2003) (making exception to Grant to accommodate situation where appellant’s sentence of seven days time served was too short to raise ineffectiveness claim in PCRA petition).


making exception to Grant to accommodate situation where appellant's sentence of seven days time served was too short to raise ineffectiveness claim in PCRA petition


Context: Rather, the primary remedy sought by the named Plaintiffs is purely monetary, as is confirmed by the deposition testimony of Christian, wherein she definitively states that her primary interest in this case is recouping her expenses.

finding the compensatory damages requested by the named plaintiffs more than "incidental" when they had to be "assessed based on the individual circumstances of the class representative's work history and personal injury" and therefore would require "individualized analysis of each class member's circumstances"

See Avritt, 615 F.3d at 1035-36 (affirming the district court’s denial of class certification under Rule 23(b)(2) when the primary remedy sought by the plaintiffs was monetary, not injunctive relief); see also Clayborne v. Omaha Pub. Power Dist., 211 F.R.D. 573, 599-600 (D.Neb.2002) (finding the compensatory damages requested by the named plaintiffs more than “incidental” when they had to be “assessed based on the individual circumstances of the class representative’s work history and personal injury” and therefore would require “individualized analysis of each class member’s circumstances”).

affirming the district court's denial of class certification under Rule 23(b)(2) when the primary remedy sought by the plaintiffs was monetary, not injunctive relief


Context: In support of his argument that this statutory entitlement vests the claimant with the rights of procedural due process commonly associated with requirements of notice and an opportunity to be heard, including cross-examination, Wallace points to decisions of other courts of appeals that have held that reliance on post-hearing physicians' reports was improper.

ALJ's use of post-hearing report both violated claimant's due process rights and exceeded Secretary's statutory authority under section 405(b

See Lonzollo v. Weinberger, 534 F.2d 712 (7th Cir.1976) (claimant’s right under 42 U.S.C. § 405(b) to decision based on evidence adduced at hearing was not satisfied where Appeals Council partially based its decision on post-hearing evidence, notwithstanding claimant’s opportunity to submit additional evidence or written comments); Gullo v. Califano, 609 F.2d 649, 950 (2d Cir.1979) (per curiam) (AU’s “substantial reliance” on post-hearing report without giving claimant an opportunity for cross-examination or rebuttal denied her due process); Townley v. Heckler, 748 F.2d 109, 114 (2d Cir.1984) (same); see also Allison v. Heckler, 711 F.2d 145, 147 (10th Cir.1983) (ALJ’s use of post-hearing report both violated claimant’s due process rights and exceeded Secretary’s statutory authority under section 405(b)(1)); Cowart v. Schweiker, 662 F.2d 731 (11th Cir.1981) (citing with approval both Gullo and Lonzollo); cf. Dorman v. Harris, 633 F.2d 1035, 1039 (2d Cir.1980) (where additional evidence in overpayment proceeding became available after the hearing, AU should have reopened the hearing).

AU's "substantial reliance" on post-hearing report without giving claimant an opportunity for cross-examination or rebuttal denied her due process


where additional evidence in overpayment proceeding became available after the hearing, AU should have reopened the hearing


Context: Such safe return is thus a type of mitigating circumstance. Accordingly, I would hold that, similar to the mitigating circumstances in SS 13-703(G), the safe return of a victim by a kidnapper prior to the kidnapper's arrest is a mitigating circumstance that must be proved by the kidnapper by a preponderance of the evidence.

Construing a kidnapping statute similar to Arizona's, the court stated, "The statute defines a single crime, kidnapping, which carries a sentence of 20 years to life but provides for a reduced sentence based upon defendant's conduct subsequent to the kidnapping____ Therefore, the defendant has the burden of going forward with evidence to show that the circumstances exist."

See Loonier v. State, 768 P.2d 1042, 1046-47 (Wyo. 1989) (Construing a kidnapping statute similar to Arizona’s, the court stated, “The statute defines a single crime, kidnapping, which carries a sentence of 20 years to life but provides for a reduced sentence based upon defendant’s conduct subsequent to the kidnapping____ Therefore, the defendant has the burden of going forward with evidence to show that the circumstances exist.”); see also State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84 (1990) (a defendant must prove the existence of mitigating circumstances by a preponderance of the evidence), citing State v. Jordan, 126 Ariz. 283, 614 P.2d 825 (1980).


Context: The hearing officer made this finding after he considered the entire constellation of facts, including the testimony from the District's witnesses and the evidence of its collective actions leading up to Ritzert's noncompliance. The finding is an inference based on a credibility determination that the hearing officer was both empowered and expected to make as a neutral adjudicator.

deKoevend, 688 P.2d at 226 ("It is the hearing officer, rather than the board, who 'is empowered to assess credibility, weigh conflicting evidence and draw factual inferences from the testimony and exhibits introduced by the parties.'" (quoting Ricci, 627 P.2d at 1119)); see also Blaine, 748 P.2d at 1286-87 ("The funetion of the hearing officer is to review the evidence and testimony, to assess the credibility of the witnesses and to weigh conflicting evidence, [and] to draw reasonable inferences from the facts. ...").


Context: XIV. A two and one-half hour detention absent probable cause, accompanied by a search of both their vehicles and personal belongings, conducted in view of # an ever-growing crowd of on-lookers, would undoubtedly deter an average law-abiding citizen from similarly expressing controversial views on the streets of the greater Dayton area.

loss of business after being removed from a police station's rotating call list sufficient to "deter the average wrecker service operator" from similarly criticizing defendant sheriff

See McCurdy v. Montgomery County, 240 F.3d 512, 520 (6th Cir.2001) (impliedly acknowledging an arrest without probable cause constitutes adverse action of sufficient consequence); cf. Lucas v. Monroe County, 203 F.3d 964, 974 (6th Cir.2000) (loss of business after being removed from a police station’s rotating call list sufficient to “deter the average wrecker service operator” from similarly criticizing defendant sheriff).


Context: Because of such a paramount objective, the First Amendment's protection of religious exercise does not typically extend to violent acts.

"we do not think the Free Exercise Clause shields conduct violating a criminal law that protects people and property from physical harm"

See American Life League v. Reno, 47 F.3d 642, 656 (4th Cir.1995) (“we do not think the Free Exercise Clause shields conduct violating a criminal law that protects people and property from physical harm”); United States v. Mullet, 868 F.Supp.2d 618, 624 (S.D.Ohio 2012) (“violence is not a protected form of religious exercise”); see also Chatwin v. United States, 326 U.S. 455, 460, 66 S.Ct. 233, 90 L.Ed. 198 (1946) (“bona fide religious beliefs cannot absolve one from liability under the Federal Kidnapping Act.”); Davis v. Beason, 133 U.S. 333, 345, 10 S.Ct. 299, 33 L.Ed. 637 (1890), abrogated by Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (“Crime is not the less odious because sanctioned by what any particular sect may designate as ‘religion.’ ”); Reynolds v. United States, 98 U.S. 145, 166, 25 L.Ed. 244 (1878) (asking rhetorically if “one believed that human sacrifices were a necessary part of religious worship,” whether the government could interfere with a human sacrifice).

"bona fide religious beliefs cannot absolve one from liability under the Federal Kidnapping Act."


"Crime is not the less odious because sanctioned by what any particular sect may designate as 'religion.' "


asking rhetorically if "one believed that human sacrifices were a necessary part of religious worship," whether the government could interfere with a human sacrifice


Context: ("A conspiracy is a partnership in criminal purposes.... [and] an overt act of one partner may be the act of all without any new agreement specifically directed to that act."). MIA was convicted of participating in a single continuing conspiracy that began more than five years before the indictment was returned, but which did not end until 1984 -- a time within the five-year period of limitations. Under the Probation Act, the only limits on restitution are that repayment must relate (i) to the particular offense of which the defendant was convicted and (ii) to the actual losses suffered by the victim.

See United States v. Boswell, 565 F.2d 1338, 1343 (5th Cir.) (“As a condition of probation a district court undoubtedly has the authority to require that a defendant make restitution to injured parties for the actual loss or damage caused by the offense for which he stands convicted....”) (citations omitted) (emphasis in original), cert. denied, 439 U.S. 819, 99 S.Ct. 81, 58 L.Ed.2d 110 (1978); see also United States v. Stuver, 845 F.2d 73, 76 (4th Cir.1988) (holding that precise amount of loss for restitution purposes must be legally determined in the underlying criminal proceeding); United States v. Johnson, 700 F.2d 699, 701 (11th Cir.1983) (“The amount of restitution cannot exceed the actual losses flowing from the offense for which the defendant had been convicted.”).

"As a condition of probation a district court undoubtedly has the authority to require that a defendant make restitution to injured parties for the actual loss or damage caused by the offense for which he stands convicted...."


"The amount of restitution cannot exceed the actual losses flowing from the offense for which the defendant had been convicted."


Context: In Orr, the United States Supreme Court held that a statute under which husbands, but not wives, might be ordered to pay alimony, violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. Orr followed a line of cases in which the Supreme Court rejected gender-based classifications.

But see Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977) (upholding method of calculating old age insurance benefits where male required to include three years more than female in average wage determination); Schlessinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975) (upholding different requirements for mandatory discharge without promotion from navy); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1975) (upholding state tax exemption for widows'only as having valid compensatory objective).

See Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977) (social security provision allowing benefits to widower only if he was receiving half of his support from his wife is unconstitutional); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1977) (law prohibiting beer sales to males under 21 and females under 18 is unconstitutional); Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975) (law setting age of majority of women at 18, and men at 21 is unconstitutional); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) (social security law providing that survivors’ benefits based on deceased husband’s earnings are payable to wife and children but benefits based on deceased wife’s earnings are payable only to children is unconstitutional); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (requirement that a wife must show her husband is actually dependent in order to claim him as a dependent for purposes of armed forces benefits allowances is unconstitutional); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) (state law giving preference to men as administrators of estates violates equal protection).


upholding different requirements for mandatory discharge without promotion from navy


upholding state tax exemption for widows'only as having valid compensatory objective


law prohibiting beer sales to males under 21 and females under 18 is unconstitutional


law setting age of majority of women at 18, and men at 21 is unconstitutional


social security law providing that survivors' benefits based on deceased husband's earnings are payable to wife and children but benefits based on deceased wife's earnings are payable only to children is unconstitutional


requirement that a wife must show her husband is actually dependent in order to claim him as a dependent for purposes of armed forces benefits allowances is unconstitutional


state law giving preference to men as administrators of estates violates equal protection


Context: In line with the federal statute, several circuit courts have determined an adverse employment action motivated by a pregnancy related condition violates the PDA even though the employee was not pregnant at the time of the discriminatory act.

Hall v. Nalco Co., 534 F.3d 644, 649 (7th Cir.2008) (holding infertility is a pregnancy related condition where plaintiff claimed she was terminated because she took time off work to undergo in vitro fertilization); Doe v. C.A.R.S. Prat.

Plus, Inc., 527 F.3d 358, 369 (3d Cir.2008) (holding woman who alleged she was terminated for having an abortion stated a prima facie case for discrimination); Kocak v. Cmty. Health Partners of Ohio, Inc., 400 F.3d 466, 470 (6th Cir.2005) (holding federal statute covers situation where employer refused to rehire employee because she might become pregnant again); see also Nelson v. Wittem Group, Inc., 140 F.Supp.2d 1001, 1007 (S.D.Iowa 2001) (holding woman who claimed she was terminated after giving birth because she became pregnant was part of the protected class).


holding woman who alleged she was terminated for having an abortion stated a prima facie case for discrimination


holding federal statute covers situation where employer refused to rehire employee because she might become pregnant again


Context: On the basis of these findings the trial court concluded that appellant was under arrest when Trooper Flick forced him to get out of the car at gunpoint, to lie on the ground, and to submit to handcuffing and a search. We agree with this conclusion.

Cf. Commonwealth v. Ferraro, 237 Pa.Super. 268, 352 A.2d 548 (1975) (fact that officer withdrew service revolver while directing defendant to get out of car did not alone turn investigatory stop into arrest).

See also Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976) (arrest occurred at least by time defendant was taken to police station); Commonwealth v. Roscioli, 240 Pa.Super. 135, 361 A.2d 834 (1976) (arrest occurred when defendant handcuffed); Commonwealth v. Klock, 230 Pa.Super. 563, 327 A.2d 375 (1974) (arrest occurred when defendant placed in troopers’ patrol car).


Context: . St. Joseph also complains that the district court erroneously submitted a question on ratification. We need not address this issue, however, as the jury's finding of liability based on joint enterprise renders the submission of ratification to show liability immaterial.

circumventing other issues where jury's verdict can be upheld on independent ground presented at trial

See Ginther v. Taub, 675 S.W.2d 724, 725 (Tex.1984) (circumventing other issues where jury’s verdict can be upheld on independent ground presented at trial); see also City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex.1995) (submission of improper jury question can be harmless if jury’s answers to other questions render improper question immaterial).

submission of improper jury question can be harmless if jury's answers to other questions render improper question immaterial


Context: First, it is axiomatic that the right that plaintiff asserts -- namely, his right under the First Amendment to be free from retaliation for his union activities and for testifying in a lawsuit -- is clearly established.

"the proscription of retaliation for a plaintiffs exercise of First Amendment rights has long been established"

See, e.g., Dobosz v. Walsh, 892 F.2d 1135, 1141 (2d Cir.1989) (“the proscription of retaliation for a plaintiffs exercise of First Amendment rights has long been established”); see also Barrett v. Harrington, 130 F.3d 246, 264 (6th Cir. 1997) (county judge not entitled to qualified immunity from retaliation claim because “it is well-established that a public official’s retaliation against an individual exercising his or her First Amendment rights is a violation of § 1983.”).

county judge not entitled to qualified immunity from retaliation claim because "it is well-established that a public official's retaliation against an individual exercising his or her First Amendment rights is a violation of SS 1983."


Context: But the sheriffs alleged conduct cannot be characterized as an unreasonable risk incident to one's service as an employee in a sheriffs department. Instead, the facts demonstrate that the sheriff deliberately abused his power by threatening deadly force as a means of oppressing those employed in his department, thus elevating his conduct to the arbitrary and conscience shocMng behavior prohibited by substantive due process.

See Robinson v. Solano County, 278 F.3d 1007, 1014 (9th Cir.2002) (discussing in dictum that an officer’s conduct in pointing a loaded weapon at a civilian without a legitimate law enforcement basis shocks the conscience); see also Burton, 791 F.2d at 99, 100-101 (finding that a prisoner had stated a substantive due process claim when he alleged that a prison guard drew and pointed a loaded pistol at him and ordered him to run so that the guard would be justified in shooting him).

discussing in dictum that an officer's conduct in pointing a loaded weapon at a civilian without a legitimate law enforcement basis shocks the conscience


Context: Mr. Nichols contends Brewer is not controlling because it did not address the 1990 amendments to the VWPA. We disagree. As the Fourth Circuit has explained, "[n]othing in the plain language of [the amended] SS 3663(a)(2) or its legislative history usurps the settled principle that a criminal defendant who participates in a conspiracy is liable in restitution for all losses flowing from that conspiracy."

United States v. Plumley, 993 F.2d 1140, 1142 n. 2 (4th Cir.1993) (affirming restitution order under 18 U.S.C. §§ 3663-3664 where defendant argued her actions did not directly harm a robbed bank because she only drove the getaway car); see also United States v. Davis, 117 F.3d 459, 463 (11th Cir.1997) (not plain error to impose restitution on each member in conspiracy based on the acts of all). We agree with and adopt the view of our sister circuits.

affirming restitution order under 18 U.S.C. SSSS 3663-3664 where defendant argued her actions did not directly harm a robbed bank because she only drove the getaway car


Context: The indisputable fact is that Father provided no support to Mother during the pregnancy. Parental rights have been terminated under South Carolina law where the biological parent did far more to grasp the opportunity of parenthood than Father.

See Roe v. Reeves, 392 S.C. 143, 708 S.E.2d 778 (2011) (finding father did not undertake a sufficient effort to make the sacrifices fatherhood demands where he bought pregnant mother sweatpants and t-shirt and offered to give mother $100, even though he attempted to visit mother in the hospital and maintain contact with mother after birth); Doe v. Roe, 369 S.C. 351, 631 S.E.2d 317 (Ct.App.2006) (finding father’s contributions to pregnant mother failed to meet general minimum standards of timely grasping the opportunity to assume full responsibility for his child where father contributed approximately $50, cigarettes, a pillow, and a few trips to fast food restaurants); cf. Abernathy v. Baby Boy, 313 S.C. 27, 437 S.E.2d 25 (1993) (finding father demonstrated willingness to develop a full custodial relationship with his child where he attempted to provide monetary support to mother during pregnancy, endeavored to keep apprised of her progress during the pregnancy, and appeared at the hospital and offered to pay medical expenses incurred from the birth).


finding father's contributions to pregnant mother failed to meet general minimum standards of timely grasping the opportunity to assume full responsibility for his child where father contributed approximately $50, cigarettes, a pillow, and a few trips to fast food restaurants


Context: Here, Plaintiffs' primary asserted injury is violation of their statutory right of publicity under California Civil Code SS 3344. As discussed more fully below, SS 3344 prohibits the nonconsensual use of another's name, voice, signature, photo graph, or likeness for advertising, selling, or soliciting purposes, and creates a cause of action for persons injured by such actions. See SAC P 2; Opp'n at 5-6. Without assessing the merits of Plaintiffs' claim, the Court finds that they have alleged a violation of their individual statutory rights under California Civil Code SS 3344, and therefore, an invasion of a legally protected interest for Article III purposes.

holding that plaintiffs had constitutional standing where plaintiffs alleged that defendant engaged in bulk compilation and distribution of their personal information contained in motor vehicle records, in violation of the Drivers' Privacy Protection Act ("DPPA"

See, e.g., DeMando v. Morris, 206 F.3d 1300, 1303 (9th Cir.2000) (“[Plaintiff] has suffered the loss of a statutory right to disclosure [under the Truth in Lending Act, 15 U.S.C. §§ 1601-1693] and has therefore suffered injury in fact for purposes of Article III standing.”); see also Graczyk v. W. Publ’g Co., 660 F.3d 275, 278 (7th Cir.2011) (holding that plaintiffs had constitutional standing where plaintiffs alleged that defendant engaged in bulk compilation and distribution of their personal information contained in motor vehicle records, in violation of the Drivers’ Privacy Protection Act (“DPPA”), 18 U.S.C. § 2722); In re Facebook Privacy Litig., 791 F.Supp.2d 705, 711-13 (N.D.Cal.2011) (Ware, C.J.) (holding that plaintiffs had constitutional standing where they alleged violation of their rights under the Wiretap Act, 18 U.S.C. §§ 2510, et seq., even though dismissal was warranted for failure to state a claim for relief thereunder); cf. Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir.2001) (exercising jurisdiction over surfer’s § 3344 claim against clothing retailer).

"[Plaintiff] has suffered the loss of a statutory right to disclosure [under the Truth in Lending Act, 15 U.S.C. SSSS 1601-1693] and has therefore suffered injury in fact for purposes of Article III standing."


holding that plaintiffs had constitutional standing where they alleged violation of their rights under the Wiretap Act, 18 U.S.C. SSSS 2510, et seq., even though dismissal was warranted for failure to state a claim for relief thereunder


exercising jurisdiction over surfer's SS 3344 claim against clothing retailer


Context: In Kansas, the granting of probation and parole and the entering into of plea bargains are also clearly based upon the defendant subsequently performing under the same type of conditional promise.

in plea bargain, State agreed not to prosecute murder charge against accomplice on condition he pled guilty to aggravated robbery and aggravated burglary and testified truthfully in the codefendants' trials

See State v. Walker, 260 Kan. 803, 808, 926 P.2d 218 (1996) (a probationer may have his or her probation revoked, and conditional freedom ended, when he or she “has failed to comply with the conditions of probation”); In re Tabor, 173 Kan. 686, 250 P.2d 793 (1952) (upon violation of conditions of parole, court is authorized to revoke and cause the convict to be imprisoned under sentence as though no parole had been granted); cf. State v. Branning, 271 Kan. 877, 881, 26 P.3d 673 (2001) (in plea bargain, State agreed not to prosecute murder charge against accomplice on condition he pled guilty to aggravated robbery and aggravated burglary and testified truthfully in the codefendants’ trials).

a probationer may have his or her probation revoked, and conditional freedom ended, when he or she "has failed to comply with the conditions of probation"


upon violation of conditions of parole, court is authorized to revoke and cause the convict to be imprisoned under sentence as though no parole had been granted


Context: Even assuming it does, courts applying actual innocence for non-capital sentencing have noted that for purposes of the actual innocence exception, " 'actual innocence' means factual innocence, not mere legal insufficiency." Thus, some circuits have held that "for the actual innocence exception to apply in the noncapital sentencing context, a movant must show that he is factually innocent of the conduct or underlying crime that serves as the predicate for the enhanced sentence."

See also United States v. Pettiford, 612 F.3d 270, 284 (4th Cir.2010) (holding under ACCA that the actual innocence of sentence exception “applies in the context of habitual offender provisions only where the challenge to eligibility stems from factual innocence of the predicate crimes, and not from the legal classification of the predicate crimes.”); cf. Poindexter v. Nash, 333 F.3d 372, 381-82 (2d Cir.2003) (involving misapplication as a career offender, but pointing out that there was no suggestion the crimes were not violent felonies).

holding under ACCA that the actual innocence of sentence exception "applies in the context of habitual offender provisions only where the challenge to eligibility stems from factual innocence of the predicate crimes, and not from the legal classification of the predicate crimes."


Context: Suniga offers no factual allegations indicating that his counsel's performance in securing a plea agreement was objectively unreasonable or that there was a reasonable probability that the government or the court would have accepted any alternative proposal.

'Without any showing that ... such plea would have .been acceptable to the court, or that the resulting sentence would have been different than that imposed ... all that the Defendant urges is speculation."

See United States v. Boone, 62 F.3d 323, 327 (10th Cir.1995) (‘Without any showing that ... such plea would have .been acceptable to the court, or that the resulting sentence would have been different than that imposed ... all that the Defendant urges is speculation.”). He additionally claims the district court should have scheduled an evidentiary hearing, but we see no basis for concluding that such a hearing would have advanced his argument.

"Given the conclusory nature of Defendant's allegations, the district court's denial of an evi- dentiary hearing was not an abuse of discretion"

Cf. United States v. Moya, 676 F.3d 1211, 1214 (10th Cir.2012) (“Given the conclusory nature of Defendant’s allegations, the district court’s denial of an evi- dentiary hearing was not an abuse of discretion”)-


Context: The board commenced administrative proceedings for the purpose of revoking the licenses of corporate-employed optometrists and had also filed a civil suit against them. Because nearly half of the practicing optometrists in Alabama were employed by corporations, it was obvious that the independent optometrists on the licensing board would receive more business, thereby reaping a substantial pecuniary gain, if the corporate-employed optometrists' licenses were revoked.

where mayor had obligation to maintain village finances, a major portion of which were derived from the fines levied by the mayor's court, mayor was disqualified from acting as judge

Id. at 579-80, 93 S.Ct. at 1698-99; see also Tumey v. Ohio, 273 U.S. 510, 531-35, 47 S.Ct. 437, 444-45, 71 L.Ed. 749 (1927) (judge received portion of fines and fees assessed in addition to his salary); cf. Ward v. Village of Monroeville, 409 U.S. 57, 57-59, 61-62, 93 S.Ct. 80, 81-83, 83-84, 34 L.Ed.2d 267 (1972) (where mayor had obligation to maintain village finances, a major portion of which were derived from the fines levied by the mayor’s court, mayor was disqualified from acting as judge).


Context: The husband clearly benefited from this arrangement (even if there was no "agreement") as he was able to advance his career throughout the marriage and to pursue college and graduate degrees, including his present efforts to obtain a doctorate in management. These circumstances resulted in a significant disparity (even after the imputation of income to the wife) in the parties' earnings and earning capacity. Under these facts, where the parties had a long-term mar riage, the wife cared for the family for a significant period of time, and there is a large disparity in the parties' financial outlook, the wife is entitled to an award of permanent periodic alimony.

See Salazar, 976 So.2d 1155; Byers, 910 So.2d at 344; Knoff, 751 So.2d at 169; see also Young v. Young, 677 So.2d 1301, 1306 (Fla. 5th DCA 1996) (“Personal or career sacrifices of a spouse during the period the other spouse achieves superior earning power should weigh in favor of an award of permanent alimony.”); cf. Weintraub v. Weintraub, 864 So.2d 22, 24 (Fla. 2d DCA 2003) (stating that bridge-the-gap alimony is appropriate where the spouse holds an advanced degree in genetics, had worked in that field, and only needed support in reentering the field).

"Personal or career sacrifices of a spouse during the period the other spouse achieves superior earning power should weigh in favor of an award of permanent alimony."


Context: Moreover, it explicitly noted that its decision was "not controlled by [] cases ... dealing with flowage easements" because the plaintiff had not requested compensation for a flowage easement. We have consis tently held that panel authority that does not address an issue is not binding as to the unaddressed issue.

stating that if a decision does not "squarely address[] [an] issue," a court remains "free to address the issue on the merits" in a subsequent case

See, e.g., Sacco v. United States, 452 F.3d 1305, 1308 (Fed.Cir.2006) (finding that a prior case "is not binding precedent on [a] point because the court did not address the issue” in that prior case); Boeing N. Am., Inc. v. Roche, 298 F.3d 1274, 1282 (Fed.Cir.2002) ("[W]e are not bound by [a prior opinion] on the issue ... since [that] issue was neither argued nor discussed in our opinion.”); see also Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (stating that if a decision does not "squarely address[] [an] issue,” a court remains "free to address the issue on the merits” in a subsequent case).

finding that a prior case "is not binding precedent on [a] point because the court did not address the issue" in that prior case


"[W]e are not bound by [a prior opinion] on the issue ... since [that] issue was neither argued nor discussed in our opinion."


Context: The district court emphasized the following language from Gonzalez in rejecting Camacho's petition: "[W]e determine the 'expiration of the time for seeking [direct] review' from this Court's filing deadlines when petitioners forgo certiorari, [and] we look to state-court filing deadlines when petitioners forgo state-court appeals." The Supreme Court's holding in Gonzalez was not so limited. The holding in Gonzalez extends to "state prisoners] who do[] not seek review in a State's highest court"; it does not exclude state prisoners who do not seek review because such review is prohibited by state law or by a plea agreement.

noting that in context of AED-PA's tolling provision for a properly filed application for state postconviction relief, "the question whether an application has been 'properly filed' is quite separate from the question whether the claims contained in the application are meritorious"

Id. at 655; see also Latham v. United States, 527 F.3d 651, 653 (7th Cir.2008) (noting that a “defendant who forswears appellate review as part of a plea bargain remains entitled to file a notice of appeal” even if “that appeal is doomed unless the guilty plea is involuntary”); Mark v. Thaler, 646 F.3d 191, 194 (5th Cir.2011) (“The relevant question is whether -Mark was entitled to file a petition, not whether a hypothetical petition would have been successful.”); cf. Artuz v. Bennett, 531 U.S. 4, 9, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000) (noting that in context of AED-PA’s tolling provision for a properly filed application for state postconviction relief, “the question whether an application has been ‘properly filed’ is quite separate from the question whether the claims contained in the application are meritorious”).

noting that a "defendant who forswears appellate review as part of a plea bargain remains entitled to file a notice of appeal" even if "that appeal is doomed unless the guilty plea is involuntary"


"The relevant question is whether -Mark was entitled to file a petition, not whether a hypothetical petition would have been successful."


Context: More specifically, for an assignment function to involve independent judgment, the putative supervisor must select employees to perform specific tasks on the basis of a judgment about the individual employee's skills.

See NLRB v. KDFW-TV, Inc., 790 F.2d 1273, 1279 (5th Cir.1986) (assignment editors were not supervisors when they served primarily as a conduit for decisions already made by manager); cf. American Diversified Foods, Inc. v. NLRB, 640 F.2d 893, 896 (7th Cir.1981) (fast food shift manager responsible for assigning fast food workers to particular tasks on a shift held to be supervisor because shift manager exercised independent judgment based on requirements of job and his opinion of individual employee’s capabilities); Arizona Pub. Serv. Co. v. NLRB, 453 F.2d 228, 231-32 (9th Cir.1971) (employee was supervisor where he had power to “choose which lineman are to work, when and where”).

fast food shift manager responsible for assigning fast food workers to particular tasks on a shift held to be supervisor because shift manager exercised independent judgment based on requirements of job and his opinion of individual employee's capabilities


employee was supervisor where he had power to "choose which lineman are to work, when and where"


Context: Plaintiffs are thus precluded from asserting section 1981 claims on behalf of the putative Class. Plaintiffs' section 1981 Class claims are required to be dismissed for this reason.

"In order for the [putative class action] complaint to surr vive this motion to dismiss, the allegations of at least one named plaintiff must state a claim for relief."

See Hardy v. Fischer, 701 F.Supp.2d 605, 611 n.5 (S.D.N.Y. 2010) (“In order for the [putative class action] complaint to surr vive this motion to dismiss, the allegations of at least one named plaintiff must state a claim for relief.”); Pruell v. Caritas Christi, No. 09-cv-11466, 2010 WL 3789318, at *4 (D. Mass. Sept. 27, 2010) (“To survive a motion to dismiss [in a putative class action], the allegations of at least one named plaintiff must state a claim for relief.”); Sheet Metal Workers 441 Health & Welfare Plan v. GlaxoSmithKline, 263 F.R.D. 205, 210 (E.D. Pa. 2009) (“[W]hen the named plaintiffl&cks a cause of action, the Court should dismiss the action before proceeding to class certification.”); Burks v. Arvest Bank, No. 4:06-cv-00551, 2006 WL 3512478, at *2(E.D. Ark. Dec. 6, 2006) (“Since the Court has dismissed the sole named Plaintiffs individual claims, the Court must dismiss the class allegations as well and no notice of this involuntary dismissal need be given' to any alleged unnamed class members.”); see also Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1169 (3d Cir. 1987).(“[T]o be a class representative on a particular claim, the plaintiff himself must have a cause of action on that claim.”).

"[T]o be a class representative on a particular claim, the plaintiff himself must have a cause of action on that claim."


"To survive a motion to dismiss [in a putative class action], the allegations of at least one named plaintiff must state a claim for relief."


"[W]hen the named plaintiffl&cks a cause of action, the Court should dismiss the action before proceeding to class certification."


"Since the Court has dismissed the sole named Plaintiffs individual claims, the Court must dismiss the class allegations as well and no notice of this involuntary dismissal need be given' to any alleged unnamed class members."


Context: From this evidence, a rational jury could reasonably conclude beyond a reasonable doubt that the defendant appreciated the wrongfulness of his conduct and that he had the ability to conform his conduct to the law.

See Lawson, 475 Mass. at 817-818 (considering circumstances of crime, as well as motive, in finding sufficiency of evidence of criminal responsibility).

Cf. Commonwealth v. Kostka, 370 Mass. 516, 538 (1976) (evidence of planning and motive supports criminal responsibility of defendant).


Context: Therefore, registration and enforcement of the Michigan order would not have survived equitable considerations as we observed supra. This interpretation of section 30.61 is consistent with interpretations of similar sections elsewhere.

See Greebel State ex. rel. v. Endsley, 269 Ind. 174, 379 N.E.2d 440 (1978) (once court confirms a foreign support order, such order has the same effect and may, under URESA, be enforced as if originally entered in Indiana); In re Marriage of Aron, 224 Cal.App.3d 1086, 274 Cal.Rptr. 357 (1st Dist.1990) (upon a foreign support order’s registration, a California court could entertain a support obligor’s modification motion, a normal defense under California law); Hartley v. Hartley, 465 So.2d 592, 593 (Fla.App.1985) (URESA registered support order can be modified upon substantial change in circumstances); Contra Costa County Ex Rel. Tuazon v. Caro, 802 P.2d 1212 (Hawaii App.1990) affd., 72 Haw. 1, 802 P.2d 1202 (father entitled to prove essential elements of waiver, estoppel, or laches in defense to enforcement of registered decree on arrearages); see also Helmick v. Helmick, 436 So.2d 1122, 1131 (Fla.App.1983) (Cowart, concurring specially) and cases cited therein.


upon a foreign support order's registration, a California court could entertain a support obligor's modification motion, a normal defense under California law


URESA registered support order can be modified upon substantial change in circumstances


Context: Dale J. Burke appeals the district court's adverse grant of summary judgment in his 42 U.S.C. SS 1983 action. We dismiss the appeal because Burke's brief completely fails to meet the requirements of Federal Rule of Appellate Procedure 28(a).

See Carter v. Lutheran Med. Ctr., 87 F.3d 1025, 1026 (8th Cir.1996) (per curiam) (dismissing pro se appeal where brief presented no question for court to decide; among other shortfalls, brief did not provide statement of issues presented for review or identify any basis of alleged error by district court); Brown v. Frey, 806 F.2d 801, 804 (8th Cir.1986) (pro se litigants are not excused from compliance with procedural law); cf. Puckett v. Cook, 864 F.2d 619, 620 n. 2 (8th Cir.1989) (to extent appellant was challenging dismissal of federal claims, he failed to show precisely and with reference to record why findings were clearly wrong, and this court would not search record for error relative to claims). Accordingly, we dismiss the appeal, and we deny Burke’s pending motion.


Context: Therefore, to the extent that the government's defense based on federal common law fraud was not explicitly appealed, we find that the defense "is inextricably linked to, and is thus 'fairly included' within, the questions presented." Moreover, under these circumstances, we can exercise our discretion to apply federal common law in this case.

"When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law."

Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (“When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.”); Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed.Cir.1990) (stating that “practice of [waiving an issue not raised by an appellant in its opening brief] is, of course, not governed by a rigid rule but may as a matter of discretion not be adhered to where circumstances indicate that it would result in basically unfair procedure”); cf. Harris Corp. v. Ericsson Inc., 417 F.3d 1241, 1251-52 (Fed.Cir.2005) (stating that “[a]n appellate court retains case-by-case discretion over whether to apply waiver,” and holding that claim construction arguments “advocating the same concept” are properly addressed).

stating that "[a]n appellate court retains case-by-case discretion over whether to apply waiver," and holding that claim construction arguments "advocating the same concept" are properly addressed


stating that "practice of [waiving an issue not raised by an appellant in its opening brief] is, of course, not governed by a rigid rule but may as a matter of discretion not be adhered to where circumstances indicate that it would result in basically unfair procedure"


Context: It is a well settled principle that "a State Legislature may not enact laws that are in derogation of the Constitution."

"[W]e must reject the notion that Art. II, SS 1 [of the United States Constitution] gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other [state] constitutional provisions"

See, e.g., Williams v. Rhodes, 393 U.S. 23, 29, 89 S.Ct. 5, 10, 21 L.Ed.2d 24, 29 (1968) (“[W]e must reject the notion that Art. II, § 1 [of the United States Constitution] gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other [state] constitutional provisions”); Langhammer v. Munter, 80 Md. 518, 527, 31 A. 300, 301-02 (1895) (“But whatever may be done, no restrictions can be imposed that will require other or different qualifications for voting, than those prescribed by the first Article of the Constitution of the State)”; Kemp v. Owens, supra, 76 Md. at 239, 24 A. at 607 (Bryan, J., concurring) (“We cannot add anything to the qualifications prescribed in the constitution; neither can we take anything from them”); Southerland v. Norris, 74 Md. 326, 328, 22 A. 137, 137 (1891) (“[Qualifications [for voting in Maryland], fixed by the organic law, can neither be enlarged nor curtailed by the General Assembly”).

"[T]he constitutional authority to implement a constitutional provision ... does not authorize the General Assembly by statute or this Court by rule to contradict or amend the Constitution"

Lamone v. Capozzi 396 Md. 53, 73, 912 A.2d 674, 685 (2006), citing Bienkowski v. Brooks, 386 Md. 516, 546, 873 A.2d 1122, 1140 (2005) (“[T]he constitutional authority to implement a constitutional provision ... does not authorize the General Assembly by statute or this Court by rule to contradict or amend the Constitution”); Washabaugh v. Washabaugh, 285 Md. 393, 411, 404 A.2d 1027, 1037 (1979) (noting that the constitutional authority to implement a constitutional provision, by rules, does not authorize a rule which is inconsistent with that provision, as it would be a “license ... to make a substantive change in the Maryland constitution ..., a result we do not think was contemplated by the drafters.... ”).


"But whatever may be done, no restrictions can be imposed that will require other or different qualifications for voting, than those prescribed by the first Article of the Constitution of the State


"[Qualifications [for voting in Maryland], fixed by the organic law, can neither be enlarged nor curtailed by the General Assembly"


noting that the constitutional authority to implement a constitutional provision, by rules, does not authorize a rule which is inconsistent with that provision, as it would be a "license ... to make a substantive change in the Maryland constitution ..., a result we do not think was contemplated by the drafters.... "


Context: In this case, no explanation or reason was given by the trial court as to its justification for the entry of the final judgment for Peco, aside from the formulaic recitation of "no just reason for delay." This failure by the trial court to include a reasoned explanation makes any review by this Court, as to whether there was an abuse of discretion in the entry of the Rule 54(b) judgment, merely speculative.

the district court's failure to give a reasoned statement regarding its entry of a Rule 54(b) judgment makes any appellate "judgment as to the propriety of certification speculative, both as to whether any consideration was given to the order and what factors were considered"

See Solomon, 782 F.2d at 61 (the district court’s failure to give a reasoned statement regarding its entry of a Rule 54(b) judgment makes any appellate “judgment as to the propriety of certification speculative, both as to whether any consideration was given to the order and what factors were considered”); see also McAdams v. McCord, 533 F.3d 924, 928 (8th Cir.2008) (the district court’s failure to provide specific reasons for its Rule 54(b) certification, makes the review by the appellate court “more speculative and less circumscribed than would be the case had the court explained its actions more fully”).

the district court's failure to provide specific reasons for its Rule 54(b


Context: Plaintiff's status, however, as either a pretrial detainee or convicted prisoner does not affect analysis of his claims. While Plaintiff's claims as a pretrial detainee are governed by the Fourteenth Amendment's Due Process Clause, the Tenth Circuit has determined the scope of this protection is co-extensive with the Eighth Amendment.

"Although the Due Process Clause governs a pretrial detainee's claim of unconstitutional conditions of confinement, the Eighth Amendment standard provides the benchmark for such claims."

See Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.1998) ("Although the Due Process Clause governs a pretrial detainee’s claim of unconstitutional conditions of confinement, the Eighth Amendment standard provides the benchmark for such claims.”) (citation omitted); see also Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir.2002) ("Pretrial detainees are protected under the Due Process Clause rather than the Eighth Amendment, [and courts in this circuit] appl[y] an analysis identical to that applied in Eighth Amendment cases brought pursuant to § 1983.”).

"Pretrial detainees are protected under the Due Process Clause rather than the Eighth Amendment, [and courts in this circuit] appl[y] an analysis identical to that applied in Eighth Amendment cases brought pursuant to SS 1983."


Context: We express no opinion on whether products liability claims are preempted only if the manufacturer complied with applicable FDA regulations.

scope of preemption under MDA "is limited to efforts by states to impose sanctions for compliance with federal regulations"

See Reiter v. Zimmer, 830 F.Supp. 199, 204 (S.D.N.Y.1993) (refusing to extend preemptive reach of MDA to negligence claim against manufacturer that allegedly violated FDA requirements); see also Slater, 961 F.2d at 1334 (scope of preemption under MDA “is limited to efforts by states to impose sanctions for compliance with federal regulations”).


Context: To focus our inquiry, we must first define the relevant forum to which the Unions seek access. As we have thus far assumed, the local government payroll systems (rather than, say, local government property in general) constitute the relevant forum for our analysis.

counseling a "tailored approach" to defining the parameters of a government forum

See Perry, 460 U.S. at 44, 103 S.Ct. 948 (considering teachers’ mailboxes, rather than the entire school, to be the relevant forum for purposes of forum analysis); see also Cornelius, 473 U.S. at 800, 105 S.Ct. 3439 (counseling a “tailored approach” to defining the parameters of a government forum).

considering teachers' mailboxes, rather than the entire school, to be the relevant forum for purposes of forum analysis


Context: The authorities cited by Solar and Urtado are distinguishable. In each cited case, the State targeted exactly the same offense in both civil and criminal actions.

"The assessed civil fines addressed the same conduct which was the basis of the subsequent criminal indictments."

See Kurth Ranch, — U.S. at -, 114 S.Ct. at 1942-43, 128 L.Ed.2d at 774-75 (involving criminal convictions for possession and conspiracy to possess drugs with later civil tax applied to the same possessed drugs); Dixon, 509 U.S. at -, 113 S.Ct. at 2853, 125 L.Ed.2d at 556 (concerning use of contempt proceedings and criminal prosecution for same drug offense); Halper, 490 U.S. at 437-39, 109 S.Ct. at 1896-97, 104 L.Ed.2d at 495 (applying civil and criminal actions to the same sixty-five false claim violations); United States v. $4.05,089.23 U.S. Currency, 33 F.3d 1210, 1216 (9th Cir.1994) (“this civil forfeiture action and the claimants’ criminal prosecution addressed the identical violations of the identical laws”), amended by 56 F.3d 41 (1995); Tilley, 18 F.3d at 297-98 (predicating civil forfeiture proceeding on the same drug trafficking offenses as charged in the indictment); Fant, 881 S.W.2d at 831 (involving single charge of possession with intent to deliver followed by civil forfeiture); see also United States v. Sanchez-Escareno, 950 F.2d 193, 194-95 (5th Cir.1991) (“The assessed civil fines addressed the same conduct which was the basis of the subsequent criminal indictments.”), cert. denied, — U.S. -, 113 S.Ct. 123, 121 L.Ed.2d 78 (1992).


concerning use of contempt proceedings and criminal prosecution for same drug offense


applying civil and criminal actions to the same sixty-five false claim violations


"this civil forfeiture action and the claimants' criminal prosecution addressed the identical violations of the identical laws"


predicating civil forfeiture proceeding on the same drug trafficking offenses as charged in the indictment


involving single charge of possession with intent to deliver followed by civil forfeiture


Context: However, an insured's conduct can vitiate good faith even without subjective dishonesty, actual knowledge of, or complicity in the forgery. If an insured's conduct rises past ordinary negligence to the level of gross negligence or knowing indifference to "red flags," it breaches the good faith requirement.

suggesting that "extending] credit based on documents that look[ ] suspicious" would be bad faith

See Marsh Inv. Corp. v. Langford, 721 F.2d 1011, 1014 (5th Cir.1983) (“[M]ere ignorance is not bad faith, but ... if one chooses to remain ignorant ... in fear of what a little knowledge will disclose ... such selective ignorance is bad faith.” (internal quotation omitted)); see also Manitowoc II, 485 F.3d at 978 n. 5 (suggesting that “extending] credit based on documents that look[ ] suspicious” would be bad faith); Manitowoc I, 2005 WL 2460719, at *5 (“To the extent an insured’s negligence rose to the level of gross negligence or knowing indifference to red flags raised about a document or customer, the bond’s good faith requirement would preclude coverage.”); cf. Stix Friedman & Co. v. Fid. & Deposit Co. of Md., 563 S.W.2d 517, 521 (Mo.Ct.App.1978) (approving a jury instruction stating, “ ‘good faith’ means freedom from knowledge of circumstances which ought to put a person on inquiry” (emphasis added)).

approving a jury instruction stating, " 'good faith' means freedom from knowledge of circumstances which ought to put a person on inquiry" (emphasis added


"To the extent an insured's negligence rose to the level of gross negligence or knowing indifference to red flags raised about a document or customer, the bond's good faith requirement would preclude coverage."


Context: In the present case, and giving due deference to Detective Comeaux's experience and expertise in the investigation of the illicit methamphetamine trade, the detective had the requisite minimal objective basis for detaining all four occupants of the vehicle who arrived together but took pains not to seem together as they engaged in "smurfing," even discounting his opinion that the exchange of money between Hatcher and defendant constituted some sort of drug transaction (for which the officer could not articulate an objective basis because he did not observe the contemporaneous transfer of an object), and even further discounting the discovery of the box of Sudafed in the bag taken from Deanne Wetzler by his partner. Moreover, once Comeaux initiated the stop, he had the authority to order defendant and the other occupants out of the vehicle for officer safely.

police may order passengers to exit a car in a routine traffic stop for reasons of the officers' safety

See State v. Landry, 588 So.2d 345, 347 (La.1991) (police may order passengers to exit a car in a routine traffic stop for reasons of the officers’ safety); see also Maryland v. 9Wilson, 519 U.S. 408, 413, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997) (when a vehicle is stopped, even for a traffic violation, officers may lawfully order its passengers to exit the vehicle).


Context: Statutes that provide rewards for informants or whistleblowers are plainly inapposite to Mr. Hicks and the facts of his ease. Nor is there any basis on which to conclude plaintiff acted as a confidential informant pursuant to any express or implied agreement with the government.

"Absent privity [of contract] between [plaintiff] and the government, there is no case."

See Katz v. Cisneros, 16 F.3d 1204, 1210 (Fed.Cir.1994) (“Absent privity [of contract] between [plaintiff] and the government, there is no case.”); San Carlos Irrigation & Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed.Cir.1989) (explaining that “[t]o recover for breach of contract, [plaintiff] must allege ... (1) a valid contract between the parties, (2) an obligation or duty arising out of the contract, (3) breach of that duty, and (4) damages caused by the breach”); contra Vargas v. United States, 114 Fed.Cl. 226, 232-36 (2014) (finding jurisdiction existed over claim for breach of confidential informant agreement).


explaining that "[t]o recover for breach of contract, [plaintiff] must allege ... (1


Context: While Pennsylvania's scheme will no doubt produce constitutional results in some instances, the practical effect of such a scheme on other occasions is the unconstitutional taxation of out-of-state value and impermissible double taxation. In my judgment, the complete absence of the subsidiaries from the apportionment formula makes it facially apparent that the Pennsylvania statute reaches beyond constitutional limits and taxes value outside its borders.

See Norfolk & Western, 390 U.S. at 325, 88 S.Ct. 995 (apportionment formula must be rationally related, both on its face and in its application, to values connected with the taxing state); see also Armco Inc. v. Hardesty, 467 U.S. 638, 644-45, 104 S.Ct. 2620, 81 L.Ed.2d 540 (1984) (a tax that unfairly apportions income from other states is a form of discrimination against interstate commerce, and discrimination can be proved from the face of the tax statute); cf. Fulton Corp. v. Faulkner, 516 U.S. 325, 331, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996) (quoting Oregon Waste Systems, Inc. v. Dep’t of Envtl. Quality of Oregon, 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994)) (“State laws discriminating against interstate commerce on their face are ‘virtually per se invalid.’ ”); Trinova Corp. v. Michigan Dep’t of Treasury, 498 U.S. 358, 374, 111 S.Ct. 818, 112 L.Ed.2d 884 (1991) (quoting Jenkins, State Taxation of Interstate Commerce, 27 Tenn. L.Rev. 239, 242 (1960)) (a tax imposed “on sleeping measured by the number of pairs of shoes you have in your closet is a tax on shoes”); PPG Industries, Inc. v. Commonwealth, Bd. of Finance & Revenue, 567 Pa. 580, 790 A.2d 261, 264 (2001) (holding manufacturing exception to Pennsylvania’s capital stock and franchise taxes unconstitutional because it facially discriminated against interstate commerce).


holding manufacturing exception to Pennsylvania's capital stock and franchise taxes unconstitutional because it facially discriminated against interstate commerce


Context: Plaintiffs argue the opposite: that it is inconceivable that Suttles, who led BP's media response effort after the oil spill, would not have known of "BP's very oum, estimates of the flow rate." (Doc. No. 186, at 36.) Plaintiffs' argument is more persuasive here.

See, e.g., see also ABC Arbitrage, 291 F.3d at 351-54 (explaining that a securities fraud complaint may survive where plaintiffs have alleged facts demonstrating that defendants failed to review or check information that they had a duty to monitor); see also In re Washington Mut, Inc., 694 F.Supp.2d at 1209-1210 (finding a strong inference of scienter pleaded as to statement about risk management where defendant was responsible for overseeing risk management).


Context: As we have related, prior to the introduction of the 2012 legislation, Attorney General Gansler and senior members of his office had opined on no less than four separate occasions that CCI's machines, and the way that they were operated, violated then-current Maryland law. Further, even if CCI's machines were legal under the 2008 law, the prohibition against special laws does not restrict the General Assembly's authority to prohibit what was previously permitted.

that legislation immediately affects only one entity "is not sufficient to render it a special law"

See Days Cove, 200 Md.App. at 276, 27 A.3d 565 (that legislation immediately affects only one entity “is not sufficient to render it a special law”); cf. Stone v. Mississippi, 101 U.S. 814, 818, 25 L.Ed. 1079 (1879) (“[N]o legislature can curtail the power of its successors to make such laws as they may deem proper in matters of [the] police power.”)

"[N]o legislature can curtail the power of its successors to make such laws as they may deem proper in matters of [the] police power."


Context: Count 3 charged the Defendant with dealing in stolen property, "to wit: JEWELRY.... " The jury found the Defendant guilty of both grand theft and dealing in stolen property. As , both charges relate to the same jewelry and to one scheme or course of conduct, the Defendant's conviction for grand theft of the jewelry violates double jeopardy.

reversing the defendant's grand theft conviction where he was charged with grand theft of two television sets, and trafficking in one of the stolen television sets four days later

Stallworth v. State, 538 So.2d 1296 (Fla. 1st DCA 1989) (reversing the defendant’s grand theft conviction where he was charged with grand theft of two television sets, and trafficking in one of the stolen television sets four days later); see Jones v. State, 453 So.2d 1192 (Fla. 3d DCA 1984) (rejecting the state’s attempt to limit the grand theft count to a stolen car, and the dealing in stolen property count to a stereo system).

rejecting the state's attempt to limit the grand theft count to a stolen car, and the dealing in stolen property count to a stereo system


Context: In other words, only Oklahoma law governed the case. And Oklahoma does not permit a claim for gross negligence as an exemption to. the Workers' Compensation Act; thus, a gross-negligence claim necessarily < could not have supported Ms. Phillips's action.

"Gross negligence, ... falls short of an. intentional wrong's equivalent."

See Parret, 127 P.3d at 575-76 (distinguishing between negligence, including gross negligence, and “willful acts that result in intended or unintended harm” and holding that only the latter, as defined by the substantial certainty test, permits recovery beyond that provided for in the Workers’ Compensation Act) (emphasis omitted); see also Myers v. Lashley, 44 P.3d 553, 563 (Okla.2002) (“Gross negligence, ... falls short of an. intentional wrong’s equivalent.”); Graham v. Keuchel, 847 P.2d 342, 362 (Okla.1993) (“While ‘ordinary’ and ‘gross’ negligence differ in degree, ‘negligence’ and ‘willful and wanton' misconduct’ differ in kind.”). In sum, it is irrelevant whether Texas law might have recognized a claim for gross negli gence because Texas law was not applicable.

distinguishing between negligence, including gross negligence, and "willful acts that result in intended or unintended harm" and holding that only the latter, as defined by the substantial certainty test, permits recovery beyond that provided for in the Workers' Compensation Act


"While 'ordinary' and 'gross' negligence differ in degree, 'negligence' and 'willful and wanton' misconduct' differ in kind."


Context: Minnesota is not unique in using "because of' in its formulation of bias assault; other courts have interpreted the same words in similar statutes to require the state to prove a causal connection between the infliction of injury and the assailant's perception of the group to which the victim belongs. By requiring a causal link, the statutes exclude offenses committed by a person who entertains racial or other bias but whose bias is not in substantial part what motivated the offense.

Id., 42 Cal.Rptr.2d at 367-68, 896 P.2d at 1377; Plowman, 838 P.2d at 563; see also Mitchell, 508 U.S. at 487-89, 113 S.Ct. at 2201 (racist speech may be introduced to prove motive for conduct unprotected by First Amendment); cf. R.A.V. v. St. Paul, 505 U.S. 377, 391, 112 S.Ct. 2538, 2547, 120 L.Ed.2d 305, 323 (1992) (finding ordinance aimed exclusively at speech to be impermissible, content-based discrimination).


Context: Mr. Bozeman and General Motors were not joint tortfeasors. Setoffs generally are available only with respect to joint tortfeasors.

"Joint and several liability is also appropriate when the tortious acts of multiple tortfeasors combine to produce a single, indivisible injury."

See, e.g., Gross v. Lyons, 763 So.2d 276, 279 (Fla.2000) ("Joint and several liability is also appropriate when the tortious acts of multiple tortfeasors combine to produce a single, indivisible injury.”); Maser v. Fioretti, 498 So.2d 568, 569-70 (Fla. 5th DCA 1986).

holding that settlement with one defendant could not be setoff from verdict against second defendant where the claims were "separate and distinct," i.e., "involving different elements of damages"

Rosenberg, D.D.S., P.A., 654 So.2d 643, 645 (Fla. 4th DCA 1995) (holding that settlement with one defendant could not be setoff from verdict against second defendant where the claims were "separate and distinct,” i.e., "involving different elements of damages”). If damages were indivisible, these defendants might nonetheless be treated as joint tortfeasors.


Context: Significantly, the agreement sent to Ms. DeFontes, who is no longer a plaintiff in this case, contained additional language advising her of the method of rejection. The introductory provision of the terms and conditions agreement that defendants sent to her stated, "[i]f for any reason Customer is not satisfied with a Dell-branded hardware system, Customer may return the system under the terms and conditions of Dell's Total Satisfaction Return Policy * * In doing so, defendants explicitly contrasted acceptance of the terms with rejection of the goods, albeit while retaining some ambiguity whether rejection of defendants' proposed terms could reasonably be construed as dissatisfaction with "Dell-branded hardware." Many of the cases upholding shrinkwrap agreements cite explicit disclaimers advising consumers of their right to reject the terms.

"IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, PROMPTLY RETURN * * * TO THE PLACE OF PURCHASE AND YOUR PURCHASE PRICE WILL BE REFUNDED"

Mortenson Co., 998 P.2d at 308 (“IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, PROMPTLY RETURN * * * TO THE PLACE OF PURCHASE AND YOUR PURCHASE PRICE WILL BE REFUNDED”). Such explicit language is also present in some of the foreign cases in which defendants have prevailed.

"[ajgreement informs the consumer that by returning the product or refusing delivery in accordance with Dell's return policy, he can reject the terms and conditions"

See, e.g., Sherr, 2006 WL 2109436, at *1 (“[ajgreement informs the consumer that by returning the product or refusing delivery in accordance with Dell’s return policy, he can reject the terms and conditions”).


Context: In that context, plaintiffs who purchased securities are permitted to demonstrate that they were damaged simply because defendant engaged in behavior otherwise prohibited and there was a change in price. See ibid. The theory therefore presumes reliance.

See Basic Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194, (1988); Blackie, supra, 524 F.2d at 906 (explaining rationale for permitting fraud on market theory in securities fraud litigation); see also Finkel v. Docutel/Olivetti Corp., 817 F.2d 356, 359-62 (5th Cir.1987) (limiting fraud on market theory to specified varieties of securities fraud claims), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988).


Context: P 13 Because the trial court's ruling was based on an incorrect legal standard, the court abused its discretion in denying ValueOptions' motion to extend its time to appeal under ARCAP 9(a) on the ground stated.

"An abuse of discretion exists when the court commits an error of law in reaching a discretionary conclusion."

See Webb v. Omni Block, Inc., 216 Ariz. 349, ¶ 6, 166 P.3d 140, 143 (App.2007) (“An abuse of discretion exists when the court commits an error of law in reaching a discretionary conclusion.”); see also State v. Chap-pie, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983) (appellate court not bound by trial court’s discretionary rulings when “the facts or inferences from them are not in dispute and where there are few or no conflicting procedural, factual or equitable considerations”); Marco C. v. Sean C, 218 Ariz. 216, ¶ 4, 181 P.3d 1137, 1139 (App.2008) (“To soundly exercise its discretion, the court must also correctly apply the law.”).

appellate court not bound by trial court's discretionary rulings when "the facts or inferences from them are not in dispute and where there are few or no conflicting procedural, factual or equitable considerations"


"To soundly exercise its discretion, the court must also correctly apply the law."


Context: Such rank speculation about a judge's possibly improper motives is clearly insufficient to implicate Murchison's prophylactic rule.

"we think the mere fact that a judge entertains a motion for new trial in a case over which he presided initially does not reasonably call'into question his impartiality ... it may be advantageous ... because of [the original judge's] familiarity with earlier proceedings"

United States v. Smith, 337 F.2d 49, 51 (4th Cir.1964) (holding that consistent with Due Process a judge presiding over a reconstruction hearing may use his own recollection of the initial plea in reaching his decision if there has been no showing of bias); cf. United States v. Martorano, 620 F.2d 912, 919 (1st Cir.1980) (“we think the mere fact that a judge entertains a motion for new trial in a case over which he presided initially does not reasonably call'into question his impartiality ... it may be advantageous ... because of [the original judge’s] familiarity with earlier proceedings”).


Context: There can be no dispute that a request for waiver of indebtedness is related to VA benefits. The indebtedness in this case arose from an overpayment of benefits, and Mrs. Edwards had a right to seek waiver of any amount owed. Because the duty to sympathetically read pro se pleadings applies, at a minimum, to pleadings related to the provision of VA benefits, and Mrs. Edwards' May 2000 submissions were related to the provision of VA benefits, we need not decide if the duty to assist applies to a request for waiver or if the duty to sympathetically read pleadings applies to any and all pro se submissions to the Secretary, as opposed to those submissions that are related to VA benefits. Inasmuch as it is clear that the Board did not sympathetically read Mrs. Edwards' May 2003 submissions related to her $2,366 indebtedness, this matter will be remanded for the Board to do so in the first instance.

holding that whether a sympathetic reading of a veteran's filings raises a claim is a factual inquiry

See Beverly v. Nicholson, 19 Vet.App. 394, 405 (2005) (holding that whether a sympathetic reading of a veteran’s filings raises a claim is a factual inquiry); Richardson v. Nicholson, 20 Vet.App. 64, 72 (2006) (remanding for the Board or regional office to give a sympathetic reading to pro se application for benefits); see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed.Cir.2004) (holding that the interpretation of a veteran’s filings is a factual inquiry).

holding that the interpretation of a veteran's filings is a factual inquiry


remanding for the Board or regional office to give a sympathetic reading to pro se application for benefits


Context: The opposing view finds environmental clean-up costs can fall within the scope of the term "damages."

See, e.g., Helena Chem. Co., 594 S.E.2d at 459 (finding such coverage and citing cases from Illinois, Minnesota, New Hampshire, North Carolina, and Washington); see also Farmland Indus., Inc. v. Republic Ins. Co., 941 S.W.2d 505 (Mo.1997) (ordinary meaning of “damages” includes equitable relief encompassing response costs incurred pursuant to state and federal statute); Minn. Mining & Mfg. Co. v. Travelers Indem. Co., 457 N.W.2d 175 (Minn.1990) (finding “damages” in policy to include reimbursement for clean-up costs undertaken at the direction of the state).

ordinary meaning of "damages" includes equitable relief encompassing response costs incurred pursuant to state and federal statute


finding "damages" in policy to include reimbursement for clean-up costs undertaken at the direction of the state


Context: The "issue" the trial court ruled on was not whether a Wade hearing was necessary -- and this is natural enough, in light of defendant's failure to ask for one when invited to -- but simply whether the identification was admissible at all. The Wade-hearing issue was not preserved, and defendant does not contend that it was plain error not to hold a Wade hearing. Accordingly, we decline to address whether a Wade hearing was necessary under these circumstances.

State v. White, 172 Vt. 493, 499, 782 A.2d 1187, 1192 (2001) (declining to address claim raised for the first time on appeal where party failed to assert plain error); see also Watkins v. Sowders, 449 U.S. 341, 349 (1981) (holding that, although Wade hearing may be constitutionally mandated under certain circumstances, it is not mandated in all cases).


Context: This testimony is insufficient to establish a standardized procedure instituted by NECA to forward mail to USAC after July 2001, the time NECA ceased acting as USAC's agent. Therefore, USAC has not rebutted the presumption that NECA received the Debtor's motion on USAC's behalf.

rebuttal shown where alleged recipient "established a regular practice of logging certified articles delivered to the office, which includes recording the article number, name of sender, and addressee," and there was "no record in the log book" indicating receipt

See Robinson, 228 B.R. at 82 (presumption of receipt was not rebutted by affidavit stating that all mail was filed, and the file did not contain the notice at issue); Ms. Interpret, 222 B.R. at 414 (no evidence of “standardized sorting and routing procedures” to rebut presumption of receipt); cf. Hogarth, No. 97 Civ. 0625, 2000 WL 375242 at *5 (rebuttal shown where alleged recipient “established a regular practice of logging certified articles delivered to the office, which includes recording the article number, name of sender, and addressee,” and there was “no record in the log book” indicating receipt).


no evidence of "standardized sorting and routing procedures" to rebut presumption of receipt


Context: As part of the sentencing process, a district court may consider whether the case before it lies within the "heartland" of typical cases considered by the Sentencing Commission when it drafted the Guidelines. Even after Booker, the district court is still required to apply the Guidelines and to consider the recommended sentence as one factor in its decision.

"Although district courts post -Booker have discretion to assign sentences outside of the Guidelines-authorized range, they should also continue to apply the Guidelines departure provisions in appropriate cases."

See United States v. Sierrar-Castillo, 405 F.3d 932, 936 n. 2 (10th Cir.2005) (“Although district courts post -Booker have discretion to assign sentences outside of the Guidelines-authorized range, they should also continue to apply the Guidelines departure provisions in appropriate cases.”); U.S.S.G. § 1A1.1 editorial note, ch. 1, pt. A, introductory cmt. n. 4(b) (“When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.”).

"[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range."

Gall v. United States, — U.S.-, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007) (“[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.”); see also 18 U.S.C. § 3553(a)(4). One step in applying the Guidelines is to determine whether or not to depart from the range specified in the Sentencing Table.


Context: That analysis is untenable on this remand because, in City of Jackson, the Supreme Court held that the "business necessity" test is not applicable in the ADEA context; rather, the appropriate test is for "reasonableness," such that the employer is not liable under the ADEA so long as the challenged employment action, in relying on specific non-age factors, constitutes a reasonable means to the employer's legitimate goals.

"Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement."

See City of Jackson, 544 U.S. at 243, 125 S.Ct. 1536 (“Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement.”); see also id. at 239, 125 S.Ct. 1536 (stating that there is no liability under the ADEA if the adverse impact of the challenged employment action is “attributable to a nonage factor-that [i]s ‘reasonable’ ”).

stating that there is no liability under the ADEA if the adverse impact of the challenged employment action is "attributable to a nonage factor-that [i]s 'reasonable' "


Context: The answer to this question lies in subsection (b)(3), as amended in 1992, which states: "For purposes of all penalties and remedies established for violations of subsection (a)(1) of this section, the prohibited activity established herein as it applies to each such device shall be deemed a separate violation." Although section (b) generally deals with criminal penalties, the plain language of subsection (b)(3) refers to "penalties and remedies," indicating the legislative intent to treat each device as a separate violation when fashioning civil sanctions.

See Columbia Cable TV Co. v. McCary, 954 F.Supp. 124, 128 (D.S.C.1996) (treating each decoder device distributed by defendant as a separate violation); Time Warner Cable v. Freedom Elecs., Inc., 897 F.Supp. 1454, 1459 (S.D.Fla.1996) (holding that “[e]ach converter-decoder manufactured or distributed in violation of § 553 is a separate violation of the statute”); but see Continental Cablevision, Inc. v. Poll, 124 F.3d 1044, 1050 (9th Cir.1997) (concluding that “it is inappropriate for a court to multiply a civil damage award under § 553 based on the number of violations involved in a single action”); Lokshin, 980 F.Supp. at 112-15 (rejecting multiple violations theory).

concluding that "it is inappropriate for a court to multiply a civil damage award under SS 553 based on the number of violations involved in a single action"


holding that "[e]ach converter-decoder manufactured or distributed in violation of SS 553 is a separate violation of the statute"


Context: P 39 As noted, Best is consistent with decisions of other courts that have scrutinized and severely criticized Oates.

"Oates has been criticized by both courts and commentators as an unduly broad interpretation of Rule 803(8

See United States v. Wilmer, 799 F.2d 495, 500-01 (9th Cir.1986) (expressly rejecting the Oates court’s reasoning and concluding “calibration certificate was admissible under Rule 803(8)(B)” because “the exclusionary provisions of [that rule] were intended to apply to observations made by law enforcement officials at the scene of a crime or the apprehension of the accused and not ‘records of routine, nonadversarial matters’ made in a nonadversarial setting”), quoting United States v. Orozco, 590 F.2d 789, 793 (9th Cir. 1979); see also United States v. Hayes, 861 F.2d 1225, 1229 (10th Cir.1989) (“Oates has been criticized by both courts and commentators as an unduly broad interpretation of Rule 803(8).”); United States v. Metzger, 778 F.2d 1195, 1202 (6th Cir.1985) (“[W]e now join the Second, Ninth and Eleventh Circuits in [refusing to apply] the restriction [in Oates ].”) “

expressly rejecting the Oates court's reasoning and concluding "calibration certificate was admissible under Rule 803(8


"[W]e now join the Second, Ninth and Eleventh Circuits in [refusing to apply] the restriction [in Oates ]."


Context: To support their assertion that Francis Lord intended to create a servitude for the benefit of the back lots, the Pierros rely, in part, upon the fact that in the deed to one such lot, he included the same "equal rights" language as was contained in the beachfront lot deeds. The language in one back lot deed is insufficient to establish that Francis Lord intended all of the back lots to have the same rights as the beachfront lots.

"[T]he mere fact that a grantor imposes restrictions in part of a tract of land which he is selling does not necessarily lead to the conclusion that he intended thereby to have the restrictions apply to his remaining land."

See Sun Valley etc., Co. v. Watts, 98 N.H. 428, 433 (1954); Carroll v. Schechter, 112 N.H. 216, 219 (1972) (“[T]he mere fact that a grantor imposes restrictions in part of a tract of land which he is selling does not necessarily lead to the conclusion that he intended thereby to have the restrictions apply to his remaining land.”); cf. Varney v. Fletcher, 106 N.H. 464, 466-67 (1965) (implying an equitable servitude where 100 lots were laid out on a series of recorded plans and all but the fifteen or eighteen lots still owned by the real estate developer were conveyed with the same restrictions).