Context: It also overlooked the reality that, in most actions involving child support, "the 'parties' to the enumerated actions will be the parents of the child," though it is the best interests of the child that is being litigated. Thus, in determining whether attorney fees are nondischargeable under SS 523(a)(5), the bankruptcy court should have focused on the character of the underlying proceedings, not who was to have been paid the attorney fees, since the putative beneficiary of the award is, in fact, the child.

See In re Poe, 118 B.R. at 811 (attorney fees awarded in the course of divorce decrees or related litigation generally take on the character of the litigation involved); cf. Hayden v. Farrell (In re Farrell), 133 B.R. 145, 147 (Bankr.S.D.Ind.1991) (disparity between financial condition of parties not dispositive of whether an obligation is support).


Context: Under Pickering and its progeny, unless the employee's comments are actually disruptive, single out a specific person as a target, or materially interfere with the performance of an employee's duties, the right to unhampered expression on matters of public salience will prevail.

plaintiff's secret tape recording of office conversations caused actual disruption

See, e. g., Van Coteghem v. Gray, 628 F.2d 488 (5th Cir. 1980) (plaintiff improperly dismissed for addressing public body on subject of civil rights for homosexuals); Hickman v. Valley Local School District Board of Education, 619 F.2d 606, 609 (6th Cir. 1980) (absent direct public criticism of superiors, personality conflict generated by protected union activities cannot justify discharge); Atcherson v. Siebenmann, 605 F.2d 1058, 1063 (8th Cir. 1979) (improper to silence employee who reveals misappropriation of public funds, despite resulting disharmony); cf. Serna v. Manzano, 616 F.2d 1165,1166 (10th Cir. 1980) (plaintiff’s secret tape recording of office conversations caused actual disruption); Janusaitis v. Middlebury Volunteer Fire Department, 607 F.2d 17 (2d Cir. 1979) (fireman properly dismissed for verbally attacking very persons with whom he functions in closest coordination).


fireman properly dismissed for verbally attacking very persons with whom he functions in closest coordination


absent direct public criticism of superiors, personality conflict generated by protected union activities cannot justify discharge


improper to silence employee who reveals misappropriation of public funds, despite resulting disharmony


Context: The court cannot "compel or punish the failure to produce things that do not exist...." Bracey v. Harlow, Civ.A.

"Given the plaintiff has failed to demonstrate the evidence ever existed, ... it could not be suppressed or withheld."

No. 111666, 2014 WL 2604706, at *4 (M.D.Pa. June 10, 2014) (“Given the plaintiff has failed to demonstrate the evidence ever existed, ... it could not be suppressed or withheld.”); cf. Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir.2007) (“[A] party is not obliged to produce, at the risk of sanctions, [evidence] that it does not possess or cannot obtain.”).

"[A] party is not obliged to produce, at the risk of sanctions, [evidence] that it does not possess or cannot obtain."


Context: Finally, as to the fifth Chateaugay II factor, the appellants did avail themselves of their opportunity to seek a stay of the Settlement Order, both before the Bankruptcy Court and before this Court. But the appellants' diligence alone is insufficient to avoid equitable mootness in light of the unavailability of effective relief and the other considerations discussed above.

"[A] stay not sought, and a stay sought and denied, lead equally to the implementation of the plan of reorganization."

See In re UNR Indus., 20 F.3d 766, 769-70 (7th Cir.1994) (“[A] stay not sought, and a stay sought and denied, lead equally to the implementation of the plan of reorganization.”); cf. In re Gucci, 126 F.3d 380, 383, 387-89 (2d Cir.1997) (appeal of sale pursuant to bankruptcy court auction was moot despite two unsuccessful attempts to obtain a stay).


Context: This statute prohibits certain drug transactions within 1,000 feet of a structure "used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12." At trial, there was evidence that Garfield School was a public school attended by kindergartners through third graders, but Ward argues there was no evidence that the school was used by a unified school district or an accredited nonpublic school.

See State v. Star, 27 Kan. App. 2d 930, 936, 10 P.3d 37, rev. denied 270 Kan. 903 (2000) (to sustain conviction for sale of cocaine within 1,000 feet of a school, State must present evidence that structure referred to as a school complies with the definition in 65-4161[d]); see also State v. West, Nos. 99, 063, 99, 067, 2008 WL 4849472 (Kan. App. 2008) (unpublished opinion), rev. denied 289 Kan. 1285 (2009) (reversing three convictions for insufficient evidence of sale of cocaine within 1,000 feet of a school because State failed to prove that the building within 1,000 feet of the three sale transactions was part of unified school district or accredited nonpublic school).


Context: Exclusion H does not exclude coverage based on ordinary employee negligence. It excludes coverage only if an employee acts with knowledge of or intent to further a forgery, or intentionally disregards relevant bank policies.

holding loss was "caused" by an employee who ignored bank policies by instructing subordinates to cash corporate checks without proper documentation

See Empire Bank, 27 F.3d at 335 (holding loss was “caused” by an employee who ignored bank policies by instructing subordinates to cash corporate checks without proper documentation); cf. Citibank Tex., N.A. v. Progressive Cas. Ins. Co., 2006 WL 3751301, at *6 (N.D.Tex. Dec. 21, 2006) (refusing to apply Exclusion H where there was no evidence “of employee collusion or of intentional disregard of bank policy”), rev’d on other grounds, 522 F.3d 591 (5th Cir.2008).

refusing to apply Exclusion H where there was no evidence "of employee collusion or of intentional disregard of bank policy"


Context: In deciding whether to impose the "extraordinary remedy" of an injunction, the court is required to consider whether a plaintiff has an adequate remedy or would suffer irreparable harm.

stating that court first must consider "whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief."

See PGBA, LLC v. United States, 389 F.3d 1219, 1227-29 (Fed.Cir. 2004) (stating that court first must consider “whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief.”); FMC Corp., 3 F.3d at 431 (determining that irreparable harm is established where there is no “meaningful relief that can be applied retroactively[.]”); see also Over-street Elec. Co., Inc. v. United States, 47 Fed.Cl. 728, 743-44 (2000) (holding that the relevant inquiry when assessing irreparable injury is whether there is an adequate remedy in the absence of an injunction).


determining that irreparable harm is established where there is no "meaningful relief that can be applied retroactively[.]"


Context: As an initial matter, the court finds that Commerce reasonably determined that the plain language of the Order's exclusion was subject to interpretation and was therefore justified in employing the (k)(1) and (k)(2) factors.

"The relevant scope terms are 'unambiguous' if they have a 'single clearly defined or stated meaning.' " (quoting Unambiguous, Webster's Third New International Dictionary of the English Language Unabridged (3d ed. 1986

See Duferco Steel, 296 F.3d at 1097 (“[A] predicate for the interpretive process is language in the order that is subject to interpretation.”); see also Meridian Prods., LLC v. United States, 851 F.3d 1375, 1381 n.7 (Fed. Cir. 2017) (“The relevant scope terms are ‘unambiguous’ if they have a ‘single clearly defined or stated meaning.’ ” (quoting Unambiguous, Webster’s Third New International Dictionary of the English Language Unabridged (3d ed. 1986)), Here; there is nothing to suggest that the term “mechanical tubing” has a .single definition, and so Commerce’s finding that it was ambiguous was in accordance with law.

"[A] predicate for the interpretive process is language in the order that is subject to interpretation."


Context: The verified motion plainly sets forth trial counsel's statements regarding his minimal efforts to investigate the cause of death, appellate counsel's ease in locating and securing controverting expert testimony, and Dr. Clarke's proposed testimony. Because Rodriguez's verified motion for new trial raises a particular matter that cannot be determined by the record and upon which relief may be granted, we hold Rodriguez's verified motion for new trial meets Reyes' requirements.

holding verified motion for new trial did not require a hearing because it "lacks sufficient detail to put the trial court on notice that reasonable grounds for relief exist"

Cf. Alcott v. State, 26 S.W.3d 1, 4-5 (Tex.App.—Waco 1999, pet. granted) (holding verified motion for new trial did not require a hearing because it “lacks sufficient detail to put the trial court on notice that reasonable grounds for relief exist”).

"The judicially imposed requirement of an affidavit or verification as a prerequisite for an evidentiary hearing on a motion for new trial has existed throughout the various incarnations of the governing precept."

See Redmond v. State, 30 S.W.3d 692, 700 (Tex.App.—Beaumont 2000, no pet.) (“The judicially imposed requirement of an affidavit or verification as a prerequisite for an evidentiary hearing on a motion for new trial has existed throughout the various incarnations of the governing precept.”) (emphasis added); Belton v. State, 900 S.W.2d 886, 901 (TexApp.—El Paso 1995, pet. refd) (“The Court has consistently held that without verification or affidavit, a motion for new trial based on matters outside the record is insufficient as a pleading.”) (emphasis added) (citing Bearden v. State, 648 S.W.2d 688, 690 (Tex.Crim.App.1983)).


Context: Thus, liability under section 3730(h) cannot be extended on the basis of a conspiracy; the hallmark of liability under section 3730(h) is an "employment relationship" and for this, the Court must search. See, e.g., Clemes v. Del Norte Cty.

United School Dist., 1996 WL 331096, *7 n. 6 (N.D.Cal.1996) (finding that plaintiff could not name individuals as defendants in section 3730(h) action because school district, not school officials, were employers); Shapiro v. Sutherland, 835 F.Supp. 836, 837-38 (E.D.Pa.1993) (question of fact existed as to whether plaintiff was employee under common law agency test); Hardin v. DuPont Scandinavia (ARA-JET), 731 F.Supp. 1202, 1205 (S.D.N.Y.1990) (independent contractor failed to state claim under 3730(h)); see also United States ex rel. Lamar v. Burke, 894 F.Supp. 1345, 1347-48 (E.D.Mo.1995) (applying Title VII definition of employer and finding that “employer” as used in section 3730(h) does not extend to corporate supervisors or president of defendant). This approach is faithful to both the language of the statute, the general proposition that remedial statutes be liberally construed, and Congress’ intent that the “definitions of ‘employee’ and ‘employer’ ... be all inclusive.”

applying Title VII definition of employer and finding that "employer" as used in section 3730(h


question of fact existed as to whether plaintiff was employee under common law agency test


Context: Athough the case law does not discuss the issue of whether a license to provide health care services is "property" within the context of this rule of statutory interpretation, in the analogous area of due process, courts have uniformly held that the holder of a license has a property right protected by the appropriate Federal Due Process Clause.

Scott v. Williams, 924 F.2d 56, 58 (4th Cir.1991) (stating driver’s license is property interest protected by Fourteenth Amendment) (citing Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971)); Mishler v. Nevada State Bd. of Med. Examiners, 896 F.2d 408, 409-10 (9th Cir.1990) (stating professional license is protected property right) (citing Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957)); Commission on Med. Discipline v. Stillman, 291 Md. 390, 405, 435 A2d. 747 (1981) (right to practice medicine protected property right subject to paramount police power of state); cf. Love v. Pepersack, 47 F.3d 120, 122-23 (4th Cir.) (stating that laws calling for issuance of license do not create property right unless state has no discretion to grant or deny the license), cert. denied, 516 U.S. 813, 116 S.Ct. 64, 133 L.Ed.2d 27 (1995). This principle of constitutional law is equally applicable in the context of statutory interpretation.


Context: However, before the doctrine may be applied in administrative proceedings, it must appear that the first agency to address the claim in question had jurisdiction to resolve that claim.

See Peterkin v. Industrial Commission, 698 P.2d 1353 (Colo.App.1985), aff'd on other grounds, 729 P.2d 977 (Colo. 1986) (doctrines of res judicata and collateral estoppel do not apply if agency lacks jurisdiction to grant relief requested); see also Maryland Casualty Co. v. Messina, 874 P.2d 1058 (Colo.1994) (doctrine of collateral estop-pel does not apply if agency implicitly resolves a factual issue which is unnecessary for determination of claim before it).


Context: The district court properly dismissed Arline's action against defendants Vasquez, Clark, and Sherman because Arline failed to allege facts sufficient to link these defendants to any constitutional violation. See Arnold, v. Int'l Bus. Macks.

to bring a 42 U.S.C. SS 1983 claim, plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of plaintiffs constitutional rights

Corp., 637 F.2d 1350, 1355 (9th Cir.1981) (to bring a 42 U.S.C. § 1983 claim, plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of plaintiffs constitutional rights); see also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.2010) (although pro se pleadings are liberally construed, plaintiff must allege sufficient facts to state a plausible claim).


Context: "A motion to remand that does not simply articulate the remedy sought on appeal will be held to the substantive standards applicable either to a motion to reconsider or to reopen." Id. Cancellation of removal requires, inter alia, a showing that the alien's "removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States." 8 U.S.C. SS 1229b(b)(l)(D). However, petitioners failed to provide any detailed evidence regarding their U.S. citizen son's medical condition or treatment. The BIA therefore did not err in concluding that they failed to demonstrate a likelihood that their application for cancellation of removal would succeed on the merits.

See INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (recognizing that failure to offer evidence establishing a prima facie case for the underlying substantive relief sought is a proper ground for denying a motion to reopen); see also In re MS-, 22 I. & N. Dec. 349, 357 (BIA 1998) (“[W]here an alien is seeking previously unavailable relief and has not had an opportunity to present her application before the [IJ], the Board will look to whether the alien has proffered sufficient evidence to indicate that there is a reasonable likelihood of success on the merits.”).

"[W]here an alien is seeking previously unavailable relief and has not had an opportunity to present her application before the [IJ], the Board will look to whether the alien has proffered sufficient evidence to indicate that there is a reasonable likelihood of success on the merits."


Context: . For example, we do not expect that these limited hearings will resemble the sometimes prolonged pretrial hearings that district courts in this Circuit have conducted to address probable cause for the government's seizure of property under federal forfeiture laws.

"[I]f a claimant challenges the validity of a seizure, ... then the merits of the forfeiture trial are expedited and the government must establish probable cause for the forfeiture prior to the forfeiture trial."

See, e.g., Names Registry Publ’g, 68 F.3d at 579 (noting that the district court below had held a two-day pretrial hearing to examine probable cause for an ex -parte seizure of bank funds under federal forfeiture law); Daccarett, 6 F.3d at 45 (three-day pretrial evidentiary hearing to examine probable cause for seizure of electronic transfer funds under federal forfeiture law); Statewide Auto Parts, 971 F.2d at 900 (oral argument followed by further written evidentiary submis sions on the issue of probable cause to seize real and personal commercial properties under federal forfeiture law); see also In re Seizure of All Funds in Accounts in Names Registry Publ’g, Inc., 887 F.Supp. 435, 449 (E.D.N.Y.) ("[I]f a claimant challenges the validity of a seizure, ... then the merits of the forfeiture trial are expedited and the government must establish probable cause for the forfeiture prior to the forfeiture trial.”), vacated on other grounds, 68 F.3d 577 (2d Cir. 1995).


three-day pretrial evidentiary hearing to examine probable cause for seizure of electronic transfer funds under federal forfeiture law


oral argument followed by further written evidentiary submis sions on the issue of probable cause to seize real and personal commercial properties under federal forfeiture law


Context: Rather, the MSPB dismissed plaintiff's case on procedural grounds, because he had not re-filed his appeal within six months. This constitutes a failure to exhaust administrative remedies before the MSPB.

See, e.g., Barnes v. Levitt, 118 F.3d 404, 410 (5th Cir.1997) (plaintiff cannot be dilatory at administrative level and then invoke jurisdiction of federal court); Jordan v. United States, 522 F.2d 1128, 1132 (8th Cir.1975) (plaintiff cannot take initial steps and then abandon administrative process); Morales v. Runyon, 844 F.Supp. 1435 (D.Kan.1994) (plaintiff failed to exhaust administrative remedies where agency dismissed EEO complaint for failure to provide affidavit); Williams v. Munoz, 106 F.Supp.2d 40, 44 (D.D.C.2000) (plaintiff failed to exhaust administrative remedies where EEOC dismissed claims for failure to respond to request for information); see also McAdams v. Reno, 64 F.3d 1137, 1142 (8th Cir.1995) (no subject matter jurisdiction where plaintiff abandoned Title VII claims before MSPB).


plaintiff cannot take initial steps and then abandon administrative process


plaintiff failed to exhaust administrative remedies where agency dismissed EEO complaint for failure to provide affidavit


plaintiff failed to exhaust administrative remedies where EEOC dismissed claims for failure to respond to request for information


Context: The Court also places little evidentiary value in the facts that John Hancock retains discretion to defend suits brought against it under the Plan, and that it is compensated based on total claims paid under the Plan. Neither fact reveals the type of discretion over the disposition of plan assets consistent with an ERISA fiduciary.

See Useden v. Acker, 721 F.Supp. 1233, 1243 (S.D.Fla.1989) (observing that cases in which service provider found to be fiduciary involved facts where service provider exercised broad control over plan assets); see also Harris, 57 F.3d at 613 (ruling that claims administrator not fiduciary where lacked authority to decide disputed and nonroutine claims); Baxter, 941 F.2d at 456 (holding that claims processor that pays claims in accordance with terms of plan not ERISA fiduciary).


holding that claims processor that pays claims in accordance with terms of plan not ERISA fiduciary


Context: This is also not a ease where Mr. Ellington has shown that bias to the impaneled jury might be presumed because of the extent of publicity during the trial.

jury's exposure to newspaper article which was highly prejudicial to defendant necessitated new trial

See State v. Scroggins, 91 Idaho 847, 848, 433 P.2d 117, 118 (1967) (mid-trial newspaper article stating other charges filed against the defendant which was discussed in the jury room did not present the degree of publicity necessary to overcome the presumption of impartiality); see also Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250, 1251-52 (1959) (jury’s exposure to newspaper article which was highly prejudicial to defendant necessitated new trial); Sheppard v. Maxwell, 384 U.S. 333, 356, 86 S.Ct. 1507, 1519, 16 L.Ed.2d 600, 616 (1966) (atmosphere of a “Roman holiday for the news media,” a “deluge of publicity,” and “massive pretrial publicity” necessitated new trial); Estes v. Texas, 381 U.S. 532, 543, 85 S.Ct. 1628, 1633, 14 L.Ed.2d 543, 550 (1965) (live radio and television broadcast of trial and pre-trial proceedings deprived defendant of “judicial serenity and calm to which [he] was entitled”); State v. Hall, 111 Idaho 827, 831, 727 P.2d 1255, 1259 (Ct.App.1986) (denial of motions for change of venue and sequestration not an abuse of discretion because prospective jurors were not “incessantly exposed to news stories throughout the pretrial period” and the “intensity of the initial coverage was dissipated by the passage of time”).


atmosphere of a "Roman holiday for the news media," a "deluge of publicity," and "massive pretrial publicity" necessitated new trial


live radio and television broadcast of trial and pre-trial proceedings deprived defendant of "judicial serenity and calm to which [he] was entitled"


denial of motions for change of venue and sequestration not an abuse of discretion because prospective jurors were not "incessantly exposed to news stories throughout the pretrial period" and the "intensity of the initial coverage was dissipated by the passage of time"


Context: Although it appears to be an issue of first impression in this circuit, several courts have addressed, and sharply divided on, whether McKennon's rule applies to post-termination wrongdoing. Two circuit courts have concluded that post-employment misconduct could be the basis for applying McKennon's after-acquired evidence defense.

"an employee's post-termination conduct can, in some circumstances, limit an employee's remedies for a wrongful discharge"

See Sellers v. Mineta, 358 F.3d 1058, 1064 (8th Cir.2004) (“an employee’s post-termination conduct can, in some circumstances, limit an employee’s remedies for a wrongful discharge”); Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 555 (10th Cir.), cert. denied, 528 U.S. 813, 120 S.Ct. 48, 145 L.Ed.2d 42 (1999) (acknowledging “the possibility that in appropriate circumstances the logic of McKennon may permit certain limitations on relief based on post-termination conduct” but affirming district court’s refusal to give McKennon instruction where alleged misconduct arose “as a direct result of retaliatory termination”); see also McKenna, 636 F.Supp.2d at 461 (McKennon’s holding “that a plaintiffs pre-termination misconduct must be considered in evaluating equitable damages” should be extended to post-termination conduct); Cohen v. Gulfstream Training Acad., Inc., 2008 WL 961472 at *3 (S.D.Fla.2008) (unpublished) (noting that the post-temiination conduct “directly flows from the conduct that occurred pre-termination”).

McKennon's holding "that a plaintiffs pre-termination misconduct must be considered in evaluating equitable damages" should be extended to post-termination conduct


noting that the post-temiination conduct "directly flows from the conduct that occurred pre-termination"


acknowledging "the possibility that in appropriate circumstances the logic of McKennon may permit certain limitations on relief based on post-termination conduct" but affirming district court's refusal to give McKennon instruction where alleged misconduct arose "as a direct result of retaliatory termination"


Context: A question is proper if it seeks to discover a juror's views on an issue applicable to the case.

Maddux, 862 S.W.2d at 592 (holding trial court abused its discretion by refusing to allow questions regarding victim’s status as a child); see also Nunfio v. State, 808 S.W.2d 482, 484-85 (Tex.Crim.App.1991) (holding the trial court abused its discretion by refusing to allow a question seeking to determine bias or prejudice in favor of the victim because she was a nun).

holding trial court abused its discretion by refusing to allow questions regarding victim's status as a child


Context: In general, courts have been lenient in determining what information constitutes a "record" within the meaning of the Act.

See, e.g., Quinn v. Stone, 978 F.2d 126, 131-33 (3d Cir.1992) (finding that both the information on a hunting roster and on a time card were “records” within the meaning of the Privacy Act); Bartel v. Federal Aviation Admin., 725 F.2d 1403, 1407-1411 (D.C.Cir.1984) (finding that letters sent by FAA official that indicated that plaintiff employee had improperly obtained access to files of FAA inspectors, although not themselves agency records, did not, as a matter of law, bar claim that Privacy Act’s disclosure provisions had been violated); Boyd v. Secretary of the Navy, 709 F.2d 684, 686 (11th Cir.1983) (finding that supervisors’ memorandum reflecting employee’s failure to follow the chain of command was a “record” within the meaning of the Privacy Act), cert. denied sub nom. Boyd v. Lehman, 464 U.S. 1043, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984); cf. Manuel, 857 F.2d at 1116-17 (assuming, without deciding, that two Veterans Administration Reports of Contact generated by undercover investigators were records); Cuccaro v. Secretary of Labor, 770 F.2d 355, 360 (3d Cir.1985) (assuming, without deciding, that investigative files compiled as a result of plaintiffs complaints were records); Brooks v. Veterans Admin., 773 F.Supp. 1483, 1486 (D.Kan.1991) (finding that information that “an unidentified doctor supported or failed to support an employee’s disability retirement application is an item of ‘information about an individual’ which is covered by the Privacy Act”); but see Bowyer v. United States Dep’t of Air Force, 804 F.2d 428, 431 (7th Cir.1986) (finding that “private notes are not subject to the requirements of the' Privacy Act” but that' “once the notes are used by the agency to make a decision concerning an individual’s employment status, the notes become subject to the provisions of the Act”.); Johnston v. Horne, 875 F.2d 1415, 1423 (9th Cir.1989) (same).

finding that both the information on a hunting roster and on a time card were "records" within the meaning of the Privacy Act


assuming, without deciding, that investigative files compiled as a result of plaintiffs complaints were records


finding that information that "an unidentified doctor supported or failed to support an employee's disability retirement application is an item of 'information about an individual' which is covered by the Privacy Act"


finding that "private notes are not subject to the requirements of the' Privacy Act" but that' "once the notes are used by the agency to make a decision concerning an individual's employment status, the notes become subject to the provisions of the Act".


finding that letters sent by FAA official that indicated that plaintiff employee had improperly obtained access to files of FAA inspectors, although not themselves agency records, did not, as a matter of law, bar claim that Privacy Act's disclosure provisions had been violated


finding that supervisors' memorandum reflecting employee's failure to follow the chain of command was a "record" within the meaning of the Privacy Act


Context: He stated that when he brought the gun, he hoped to "[s]care [the group] to leave.... " We conclude that the record contains some evidence that appellant's purpose in threatening to use deadly force was "limited to creating an apprehension that he will use deadly force if necessary." See id. Thus, because some evidence supports this defensive issue, we hold that appellant was entitled to a section 9.04 instruction.

See Brown, 955 S.W.2d at 279 (holding that defensive theory must be submitted to jury when theory is raised by evidence from any source); see also Shaw, 243 S.W.3d at 658 (holding that defendant entitled to instruction on defensive theory regardless of whether evidence supporting theory is weak or contradicted, or when trial court believes supporting evidence is not credible); Bufkin, 207 S.W.3d at 782 (holding that we view evidence in light most favorable to defendant’s requested submission).


holding that we view evidence in light most favorable to defendant's requested submission


Context: Applying the Remmer-Console analytical framework to this case does not change the outcome. Since the presumption of prejudice is effectively rebutted by a juror's credible profession of impartiality, and the court so found in this case, the contact between Zauzmer and Simon was necessarily harmless.

finding presumption of prejudice rebutted where a juror who learned that a dismissed juror had been contacted by an investigator for defendant had "emphatically" stated she was not prejudiced against the defendants as a result of her knowledge of the call

See Console, 13 F.3d at 667-69 (finding that the district court had not abused its discretion in finding that defendant was not prejudiced by legal advice given to a juror by her attorney sister-in-law about the case, which the juror imparted to other jurors, because a voir dire of the jurors revealed that the jurors paid no attention to the comment); see also United Stated v. Boseia, 573 F.2d 827, 832 (3d Cir.1978) (finding presumption of prejudice rebutted where a juror who learned that a dismissed juror had been contacted by an investigator for defendant had “emphatically” stated she was not prejudiced against the defendants as a result of her knowledge of the call).


Context: Plaintiffs argue that the district court erred in considering sites with restrictive leases banning adult entertainment establishments. Under Topanga Press, however, sites must only reasonably become available to some generic commercial enterprise, not specifically to adult businesses.

See 989 F.2d at 1531-32 (“The issue is whether any site is part of an actual market for commercial enterprises generally.”); cf. Woodall v. City of El Paso (Woodall III), 49 F.3d 1120, 1125-26 (5th Cir.1995) (also noting that large single-use buildings, like warehouses and factories, may arguably be outside commercial real estate market).

"The issue is whether any site is part of an actual market for commercial enterprises generally."


Context: The respondent's actions obstructed Corkins' compliance with a court order and damaged others' confidence in the judicial system. In other situations where an attorney has obstructed another's compliance with a court order or engaged in conduct unbecoming a court officer, we have found a violation of KRPC 8.4(d).

respondent's repeated failure to comply with court orders and discovery deadlines in two actions violated KRPC 8.4[d]

See In re Lober, 291 Kan. 394, 399, 241 P.3d 81 (2010) (respondent violated KRPC 8.4[d] when he failed to take action on behalf of client); In re Jensen, 286 Kan. 1160, 1167, 191 P.3d 1118 (2008) (respondent violated KRPC 8.4[d] when he instructed subpoenaed witness that he need not appear in court unless he heard from respondent); In re Pyle, 283 Kan. 807, 815, 156 P.3d 1231 (2007) (respondent’s unrestrained statements violated KRPC 8.4[d] by “ prejudicing] justice in a general sense by lessening the public confidence in our disciplinary system’ ”); see also In re Dennis, 286 Kan. at 735-36 (respondent’s repeated failure to comply with court orders and discovery deadlines in two actions violated KRPC 8.4[d]); In re Coder, 272 Kan. 758, 763, 35 P.3d 853 (2001) (respondent violated KRPC 8.4[d] when he failed to object or assert defense, failed to appear in court, failed to comply with court orders, and failed to provide discovery).


respondent violated KRPC 8.4[d] when he failed to object or assert defense, failed to appear in court, failed to comply with court orders, and failed to provide discovery


respondent violated KRPC 8.4[d] when he instructed subpoenaed witness that he need not appear in court unless he heard from respondent


respondent's unrestrained statements violated KRPC 8.4[d] by " prejudicing] justice in a general sense by lessening the public confidence in our disciplinary system' "


Context: That is also fundamental objective upon which the award of sanctions .under SS 14-10-129.5 is based. See Colo.Rev.Stat. SS 14-10-129.5(2)(b) ("the court, in the best interests of the child, may issue orders which may include ... [modifying the previous order to meet the best interests of the child ... [and] [ajwarding to the aggrieved party, where appropriate, actual expenses ... ") (emphasis added). Under these circumstances, most courts hold that fees "inextricably intertwined with proceedings affecting the welfare of the child," such as custody and visitation, should be deemed support.

In re Peters, 133 B.R. at 295; see also Dellapa v. Vazquez (In re Vazquez), 92 B.R. 533, 535 (S.D.Fla.1988) (fees awarded in litigation over visitation, custody, contempt and child support nondischargeable); In re Farrell, 133 B.R. at 147-48 (holding nondis-chargeable fees imposed in part to punish debtor for disobeying court order in proceeding to compel return of child); In re Poe, 118 B.R. at 812 (fees incurred in child custody litigation exempt from discharge); York v. Castro (In re Castro), 74 B.R. 38, 39-40 (Bankr.M.D.Fla.1987) (attorney fees and litigation expenses relating to debtor’s abduction of child and denial of visitation rights held nondischargeable); Hicks v. Hicks (In re Hicks), 65 B.R. 227, 229 (Bankr.D.N.M.1986) (denying discharge of debt for fees awarded in dispute to recover child from debtor who violated custody order); Rose v. Gedeon (In re Gedeon), 31 B.R. 942, 945 (Bankr.D.Colo.1983) (former wife’s fees in pursuing custody considered support); cf. Judge v. Schmiel (In re Schmiel), 94 B.R. 373, 379 (Bankr.E.D.Pa.1988) (dependent child or spouse need only show scant nexus between their maintenance and support and fee award for award to be held nondischargeable).


holding nondis-chargeable fees imposed in part to punish debtor for disobeying court order in proceeding to compel return of child


attorney fees and litigation expenses relating to debtor's abduction of child and denial of visitation rights held nondischargeable


denying discharge of debt for fees awarded in dispute to recover child from debtor who violated custody order


Context: As to purported violations of NGFA Grain Trade Rules, the arbitrators stated that they had looked beyond the rules to the express terms of the contract, which they held took precedence over NGFA rules. Thus, there was no "manifest disregard" of the NGFA Grain Trade Rules; at most, there'was an unreviewable legal error as to the applicability of those rules.

"Regardless of the wisdom of the panel's [legal] conclusion, it in no way demonstrates a manifest disregard for the law warranting vacation of the arbitration award in this case."

UHC Management Co., 148 F.3d at 998 (‘“We may not set an award aside simply because we might have interpreted the agreement differently or because the arbitrators erred in interpreting the law or in determining the facts.’ ”) (quoting Kiernan, 137 F.3d at 594); see also Kieman, 137 F.3d at 594-95 (“Regardless of the wisdom of the panel’s [legal] conclusion, it in no way demonstrates a manifest disregard for the law warranting vacation of the arbitration award in this case.”).

'"We may not set an award aside simply because we might have interpreted the agreement differently or because the arbitrators erred in interpreting the law or in determining the facts.' "


Context: Because all of the language of Section 1396r-6 except the "plan requirements" language, reflects Congress's intention to confer a right to TMA upon persons who meet the various eligibility requirements, we find that Section 1396r-6 can support a Section 1983 claim. The only relevant post -Gonzaga precedent from the Courts of Appeals supports this holding.

finding that Medicaid recipients may bring a Section 1983 action for breach of the Medicaid Act's fair hearing provision assuming that they failed to receive complete and adequate medical benefits

See Gean v. Hattaway, 330 F.3d 758, 772-73 (6th Cir.2003) (finding that Medicaid recipients may bring a Section 1983 action for breach of the Medicaid Act’s fair hearing provision assuming that they failed to receive complete and adequate medical benefits); Bryson v. Shumway, 308 F.3d 79, 88-89 (1st Cir.2002) (holding that Section 1396a(a)(8), which requires that state Medicaid plans provide that medical assistance “shall be furnished with reasonable promptness to all eligible individuals” supports a Section 1983 claim).

holding that 42 U.S.C. SS 1396a(a)(13)(A), which requires states to make reasonable reimbursement to providers, was enforceable by the providers pursuant to Section 1983

Cf. Wilder v. Virginia Hosp. Assoc., 496 U.S. 498, 501-02, 512, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) (holding that 42 U.S.C. § 1396a(a)(13)(A), which requires states to make reasonable reimbursement to providers, was enforceable by the providers pursuant to Section 1983); Concourse Rehab. & Nursing Ctr. Inc. v. Whalen, 249 F.3d 136, 143-44 (2d Cir.2001) (holding prior to Gonzaga that Medicaid provision requiring nursing facilities to provide certain services was intended for the benefit of the recipients and not for the benefit of the facilities).


holding prior to Gonzaga that Medicaid provision requiring nursing facilities to provide certain services was intended for the benefit of the recipients and not for the benefit of the facilities


Context: No editorials sounded the call for justice, nor did any county officials make public, blatantly prejudicial comments. Finally, the disclosure that Mills was in jail for a parole violation did not suggest that juror prejudice should have been presumed.

"[Prejudice is not presumed simply because the defendant's criminal record is well publicized."

See Marsden v. Moore, 847 F.2d 1536, 1543 (11th Cir.) (holding that petitioner had failed to establish presumed prejudice despite a substantial number of jurors’ exposure to newspaper articles disclosing inadmissable evidence), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988); cf. Bundy, 850 F.2d at 1425 (“[Prejudice is not presumed simply because the defendant’s criminal record is well publicized.”).

holding that petitioner had failed to establish presumed prejudice despite a substantial number of jurors' exposure to newspaper articles disclosing inadmissable evidence


Context: FN6. This requirement of certitude should not be confused with the government's burden of proof, which, it is well settled, requires that inevitable discovery be established by a preponderance of the evidence.

"If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ... then the deterrence rationale has so little basis that the evidence should be received." (emphasis added

See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (“If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ... then the deterrence rationale has so little basis that the evidence should be received.” (emphasis added)); see also United States v. Cunningham, 413 F.3d 1199, 1203 (10th Cir.2005) (“The government possesses the burden of proving by a preponderance of the evidence that the evidence at issue would have been discovered without the Fourth Amendment violation.”).

"The government possesses the burden of proving by a preponderance of the evidence that the evidence at issue would have been discovered without the Fourth Amendment violation."


Context: . The circuit courts that have addressed Amendment 801's retroactivity have arrived at different answers.

holding, in view of the government's concession, that Amendment 801 is retroactive

Compare United States v. Roberty, 689 Fed.Appx. 492, 493 (9th Cir. 2017) (holding, in view of the government’s concession, that Amendment 801 is retroactive), with United States v. Aman, 697 Fed.Appx. 939, 940 (10th Cir. 2017) (stating that Amendment 801 is riot retroactive).

See also United States v. Hansen, 859 F.3d 576, 578 (8th Cir. 2017) (listing arguments on both sides but resolving the predicate sentencing challenge on harmlessness grounds).


Context: The cases cited by Diamond stand only for the proposition that under New York law, a claim for equitable distribution does not seek a judgment that affects the prop erty in a manner contemplated by Article 65.

"A claim that real property is a marital asset subject to distribution does not, by itself, establish grounds for a lis pendens."

See Gross, 114 A.D.2d at 1003, 495 N.Y.S.2d at 443 (“The fact that plaintiff may be entitled to an equitable distribution with regard to the residence does not give rise to [the extraordinary] privilege [of filing of a notice of pendency].”); Fakiris, 177 A.D.2d at 543, 575 N.Y.S.2d at 927 (citing Gross for same); see also Sehgal v. Sehgal, 220 A.D.2d 201, 201, 631 N.Y.S.2d 360, 361 (App.Div.1995) (“A claim that real property is a marital asset subject to distribution does not, by itself, establish grounds for a lis pendens.”).

"The fact that plaintiff may be entitled to an equitable distribution with regard to the residence does not give rise to [the extraordinary] privilege [of filing of a notice of pendency]."


Context: He then dragged her by her arm, beat her head against the floor multiple times, and kicked her in her torso, while in an area between the dining room and living room. We concluded that the defendant's guilty verdicts should have merged because his "conduct was continuous and uninterrupted; there was no evidence that he paused his aggression from the time he pulled the victim off the bed to the final charged act of kicking her in the torso."

insufficient evidence as to a significant pause between blows to victim's body with a wooden closet rod

State v. Sanders, 185 Or App 125, 130, 57 P3d 963 (2002), adh’d to as modified on recons, 189 Or App 107, 74 P3d 1105 (2003), rev den, 336 Or 657 (2004) (insufficient evidence as to a significant pause between blows to victim’s body with a wooden closet rod); see also State v. Watkins, 236 Or App 339, 348, 236 P3d 770, rev den, 349 Or 480 (2010) (insufficient evidence as to a significant pause in the defendant’s assault of a corrections officer).

insufficient evidence as to a significant pause in the defendant's assault of a corrections officer


Context: In turn, Section 10 of the same Article provides "nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured." Pa. Const. Article I, Section 10. Considered together, these passages embody the underlying sanctity of private property ownership enjoyed by the citizens of this Commonwealth, which yields only in the face of public interest.

"The right of the Commonwealth to take private property without the owner's assent on compensation made, or authorized it to be taken ... can never be lawfully exercised but for a public purpose -- supposed and intended to benefit the public, either mediately or immediately"

See Appeal of Lance, 55 Pa. 16, 25 (Pa.1867) (“The right of the Commonwealth to take private property without the owner’s assent on compensation made, or authorized it to be taken ... can never be lawfully exercised but for a public purpose — supposed and intended to benefit the public, either mediately or immediately”). Indeed, as early as 1871, this Court recognized that “[i]t has become, then, a fundamental axiom of constitutional law, not only in this, but in every other state of this Union, that the legislative power cannot, either directly or indirectly, without the consent of the owner, take private property for merely private use, with or without compensation.”

stating that "fwjhile the Constitution does not in express terms deny the right to take property for a private use under the power of eminent domain, the plain implication is that the power can only be exercised when the property taken is for a public use"

Palairet’s Appeal, 67 Pa. at 486 (emphasis supplied); see also Philadelphia Clay, 88 A. at 489 (stating that “fwjhile the Constitution does not in express terms deny the right to take property for a private use under the power of eminent domain, the plain implication is that the power can only be exercised when the property taken is for a public use”).


Context: Neff's sentence would have been enhanced, for a "violent felony" conviction, whether or not the Court considered the facts surrounding his attempted burglary conviction. The Sentencing Commission has thus determined that certain crimes -- regardless of the precise conduct -- are inherently violent."

applying a categorical, rather than a factual approach to the determination of whether a prior conviction was a "violent felony"

See Telesco, 962 F.2d at 166 (holding there is no such thing as a non-violent burglary); see also United States v. Hathaway, 949 F.2d 609 (2d Cir.1991) (per curiam), cert. denied, 502 U.S. 1119, 112 S.Ct. 1237, 117 L.Ed.2d 470 (1992) (applying a categorical, rather than a factual approach to the determination of whether a prior conviction was a “violent felony”).


Context: . Even if the petition of 1/15/97 was untimely under Pennsylvania law, it is unclear that I would be obligated to make this finding absent a ruling by the state courts to that effect.

"[W]e are not bound to enforce a state procedural rule when the state itself has not done so, even if the procedural rule is theoretically applicable to our facts"

See Smith v. Freeman, 892 F.2d 331, 337 (3d Cir.1989) (”[W]e are not bound to enforce a state procedural rule when the state itself has not done so, even if the procedural rule is theoretically applicable to our facts”).

adopting approach that analyzes whether a state application complied with the state's applicable filing requirements, independent of how the state courts treated the application

Cf. Gibson v. Klinger, 232 F.3d 799, 806 (10th Cir.2000) (adopting approach that analyzes whether a state application complied with the state’s applicable filing requirements, independent of how the state courts treated the application).


Context: (See Hutzler Tr. at 104-6.) Similarly, Swinney, the NYCHA supervisor at the work site, has testified that, whenever there was a problem with the water jet not "having pressure," he would report the problem to the on-site Yankee Fiber employees and that those employees would fix, or attempt to fix, the problem. (Swinney Tr. at 38.) Accordingly, the Court finds that, drawing all reasonable inferences in plaintiffs favor, he has presented sufficient evidence to establish that Yankee Fiber owed a duty to plaintiff to take reasonable care in maintaining and/or operating the water jet.

finding that a lessor of construction equipment owed a duty of care to one of the lessee's employees that operated the equipment "arising out of [the defendant-lessor's] status as a repairer of the equipment it provided"

See Hopps, 763 N.Y.S.2d at 859 (finding that a lessor of construction equipment owed a duty of care to one of the lessee’s employees that operated the equipment “arising out of [the defendant-lessor’s] status as a repairer of the equipment it provided”); see also Petty v. New York Cent. R.R, 322 F.Supp. 1324, 1326 (S.D.N.Y.1970) (“[I]t is clear that in the case where damages result from the lessor’s maintenance, the lessor bears the responsibility for the said damages.”).

"[I]t is clear that in the case where damages result from the lessor's maintenance, the lessor bears the responsibility for the said damages."


Context: "Commerce retains broad discretion to define and clarify the scope of an antidumping investigation in a manner which reflects the intent of the petition."

Minebea Co. v. United States, 16 CIT 20, 22; 782 F. Supp. 117, 120 (1992) (upholding as supported by substantial evidence scope clarification made after notice of initiation). This discretion is limited by the requirement that it be exercised reasonably and that any consequent determination be supported by substantial evidence in the administrative record.

''Commerce, however, must exercise cau-thion in redefining scope in midstream to include items which were clearly known about and excluded at the time of initiation of the investigation * * *."

See Smith Corona v. United States, 16 CIT 562, 565, 796 F. Supp. 1532, 1535 (1992) (’’Commerce, however, must exercise cau-thion in redefining scope in midstream to include items which were clearly known about and excluded at the time of initiation of the investigation * * *.”).


Context: Subsequent to the decision in Keene Corp., many jurisdictions have applied the continuous trigger theory in both asbestos and environmental contamination cases.

"Courts faced with coverage determinations in the toxic waste setting are likely to ... adopt the exposure, manifestation or continuous trigger theories rather than a 'single point in time' test, with those courts intent upon maximizing coverage to the greatest extent possible opting for the continuous trigger approach."

See Zurich Ins. Co. v. Raymark, 118 Ill.2d 23, 112 Ill.Dec. 684, 514 N.E.2d 150 (Ill.1987) (applying continuous trigger theory to personal injury asbestos claims); Fireman’s Fund Ins. Co. v. Ex-Cell-O Corp., 662 F.Supp. 71, 76 (E.D.Mich.1987)(reeognizing similarity between asbestos claims and hazardous waste claims and holding that continuous trigger theory implicates “each exposure of the environment to a pollutant”); New Castle County v. Continental Cas. Co., 725 F.Supp. 800, 812 (D.Del.1989), rev’d in part and ajfd. in part, 970 F.2d 1267 (3d Cir.l992)(concluding in leachate pollution case that “the entire injurious process may constitute ‘injury’ under the terms of the policies”); Harleysville Mutual Ins. Co., Inc. v. Sussex County, 831 F.Supp. 1111, 1124 (D.Del.1993)(finding “slow leaching of pollutants from a landfill to adjacent property” constitutes a progressive injury requiring use of continuous trigger theory); Northern States Power Co. v. Fidelity and Cas. Co. of New York, 523 N.W.2d 657, 664 (Minn.l994)(holding groundwater contamination is “continuous process in which the property damage is evenly distributed over the period of time from the first contamination to the end of the last triggered policy”); United States Gypsum Co. v. Admiral Ins. Co., 268 Ill.App.3d 598, 205 Ill.Dec. 619, 643 N.E.2d 1226, 1257 (Ill.App.Ct.1994)(applying continuous trigger theory to asbestos-related property damage claims); GenCorp, Inc. v. AIU Ins. Co., 104 F.Supp.2d 740, 749 (N.D.Ohio 2000)(holding that continuous trigger will be applicable when environmental contamination claimant is able to show that damage, like asbestosis, occurred on continuing basis); See also Howard, supra, 22 Tort & Ins. L.J. at 632-33 (“Courts faced with coverage determinations in the toxic waste setting are likely to ... adopt the exposure, manifestation or continuous trigger theories rather than a ‘single point in time’ test, with those courts intent upon maximizing coverage to the greatest extent possible opting for the continuous trigger approach.”).

reeognizing similarity between asbestos claims and hazardous waste claims and holding that continuous trigger theory implicates "each exposure of the environment to a pollutant"


concluding in leachate pollution case that "the entire injurious process may constitute 'injury' under the terms of the policies"


finding "slow leaching of pollutants from a landfill to adjacent property" constitutes a progressive injury requiring use of continuous trigger theory


holding groundwater contamination is "continuous process in which the property damage is evenly distributed over the period of time from the first contamination to the end of the last triggered policy"


holding that continuous trigger will be applicable when environmental contamination claimant is able to show that damage, like asbestosis, occurred on continuing basis


Context: These reasonable inferences indicate that Hohenwald engaged in calculated decision-making fueled by anger, not terror.

See Van Keuren, 759 N.W.2d at 40 (stating that anger alone is insufficient to form the basis for heat-of-passion manslaughter); State v. Richardson, 398 N.W.2d 657, 664 (Minn.1986) (holding that a defendant’s decision to chase the victim and continue his attack “indicates hate instead of terror”). Thus, the circumstances proved support reasonable inferences that establish beyond a reasonable doubt that Hohenwald’s reason and willpower were neither clouded nor weakened at the time of the killings.

concluding that the defendant did not act in the heat of passion when he made "rational" and "calculating" attempts to avoid detection for the crime he had just committed

Cf. State v. Stewart, 624 N.W.2d 585, 591 (Minn.2001) (concluding that the defendant did not act in the heat of passion when he made “rational” and “calculating” attempts to avoid detection for the crime he had just committed).


holding that a defendant's decision to chase the victim and continue his attack "indicates hate instead of terror"


Context: . Moreover, petitioners' children have resided in Colombia since the time of the alleged persecution without any harm.

"[Wjhen family members remain in petitioner's native country without meeting harm, and there is no individualized showing that petitioner would be singled out for persecution, the reasonableness of a petitioner's well-founded fear of future persecution is diminished"

See Abdulrah-man, 330 F.3d at 592 n. 3 (presumption of well-founded fear of persecution can be rebutted with evidence that petitioner can reasonably avoid persecution by relocating to another part of his or her country); cf. Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) ("[Wjhen family members remain in petitioner’s native country without meeting harm, and there is no individualized showing that petitioner would be singled out for persecution, the reasonableness of a petitioner's well-founded fear of future persecution is diminished”).


Context: The amended complaint refers to the claim against these individuals as a claim for malicious prosecution. Any such claim is barred by absolute prosecutorial immunity.

malicious prosecution claim covered by doctrine of absolute prosecutorial immunity, which creates "formidable obstacle" for plaintiff seeking relief under SS 1983

See Pinaud v. County of Suffolk, 52 F.3d 1139, 1147, 1149 (2d Cir. 1995) (malicious prosecution claim covered by doctrine of absolute prosecutorial immunity, which creates “formidable obstacle” for plaintiff seeking relief under § 1983). Plaintiff’s allegation of a conspiracy to present false testimony against him at his criminal trial does not undercut the prosecutors’ absolute immunity.

state prosecutors absolutely immune from liability under SS 1983 for initiating prosecution and presenting state's case

Imbler v. Pachtman, 424 U.S. 409, 420, 431, 96 S.Ct. 984, 990, 995, 47 L.Ed.2d 128 (1976) (state prosecutors absolutely immune from liability under § 1983 for initiating prosecution and presenting state’s case).


Context: Again, our inquiry is limited to determining whether there is sufficient evidence upon which a reasonable jury could conclude Stanley's guilt. After diligently reviewing the record, we find that the evidence is sufficient to convict Stanley on all three Travel Act Counts.

See Carrion, 809 F.2d at 1127 (finding enough evidence to establish continuous course of conduct for Travel Act purposes); see also Cauble, 706 F.2d at 1351 (where Travel Act conviction was challenged, applying reasonable jury standard to uphold that conviction).


Context: Regardless of the particulars, which the courts have not yet explored in depth, as a general rule, the hurdle Gisbrecht erects for the claimant's attorney is rather low, and a change to the agreement is warranted at least, and perhaps at most, when justice requires.

describing the "contingent fee" method as it was applied prior to Gisbrecht as "essentially erect[ing] a rebuttable presumption that a contingency fee arrangement of 25 percent or less is a reasonable fee, absent evidence suggesting otherwise"

See, e.g., Yarnevic v. Apfel, 359 F.Supp.2d 1363, 1363-67 (N.D.Ga.2005) (approving a contingency fee agreement resulting in an award of $21,057.75 for approximately 33 hours of work conducted primarily by the attorney’s paralegals and noting, “Since Gisbrecht ... the district courts generally have been deferential to the terms of contingency fee contracts in § 406(b) cases, accepting that the resulting de facto hourly rates may exceed those for non contingency-fee arrangements”); Claypool v. Barnhart, 294 F.Supp.2d 829 (S.D.W.Va.2003) (approving a request for an award under a contingency fee agreement of $18,000, or approximately 9 percent of the past-due benefits awarded, for 12.56 hours); Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D.Cal.2003) (approving $25,132.50, or 18.2 percent of past-due benefits, for 56 hours); Martin v. Barnhart, 225 F.Supp.2d 704 (W.D.Va.2002) (approving $10,189.50, or 25 percent, for 16.82 hours); see also Kay, 176 F.3d at 1325 (describing the “contingent fee” method as it was applied prior to Gisbrecht as “essentially erect[ing] a rebuttable presumption that a contingency fee arrangement of 25 percent or less is a reasonable fee, absent evidence suggesting otherwise”).

approving a contingency fee agreement resulting in an award of $21,057.75 for approximately 33 hours of work conducted primarily by the attorney's paralegals and noting, "Since Gisbrecht ... the district courts generally have been deferential to the terms of contingency fee contracts in SS 406(b


approving a request for an award under a contingency fee agreement of $18,000, or approximately 9 percent of the past-due benefits awarded, for 12.56 hours


approving $25,132.50, or 18.2 percent of past-due benefits, for 56 hours


Context: P 6 Section 11-972(B) provides that, when a trial court in an inverse condemnation action initiated "because of [an] alleged physical taking" awards compensation to the landowner "for the physical taking of property," the landowner is entitled to reim bursement for reasonable costs and litigation expenses. The plain and unambiguous language of the statute establishes, therefore, that SS 11-972(B) applies only to physical takings.

"We presume the legislature did not intend to write a statute that contains a void, meaningless, or futile provision."

See Simpson v. Simpson, 224 Ariz. 224, ¶ 6, 229 P.3d 236, 237 (App.2010) (court will not interpret statute in manner rendering any word, phrase, or clause meaningless); see also State v. Pitts, 178 Ariz. 405, 407, 874 P.2d 962, 964 (1994) (“We presume the legislature did not intend to write a statute that contains a void, meaningless, or futile provision.”).


Context: Where the decision has already been made and carried out, and the action taken cannot be undone, there is absolutely no function or role for an EIS. Any suit to compel an EIS at that point is, perforce, moot.

Sierra Club v. Penfold, 857 F.2d 1307, 1317-18 (9th Cir.1988) (suit challenging mining operations; the suit for an EIS is moot because “no adequate remedy exists _ [A] completed mining project cannot be moved,” distinguishing Columbia Basin Land Protection Assoc, v. Schlesinger, 643 F.2d 585, 591 n. 1 (9th Cir.1981) (suit over placement of power lines is not moot since the court could order that the power line be moved)); see also Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1378-79 (9th Cir.1978) (claim is moot because the challenged mining project ended before the appeal was heard); Ogunquit Village Corp. v. Davis, 553 F.2d 243, 246-47 (1st Cir.1977) (courts cannot provide post-completion relief under NEPA).


Context: Restatement (Second) of Conflict of Laws SS 142(2). Section 142(2) thus requires Ohio courts to apply Ohio's statute of limitations to breach of contract actions brought in Ohio, even if the action would be time-barred in another state.

See Males v. W.E. Gates & Associates, 29 Ohio Misc.2d 13, 504 N.E.2d 494, 494-95 (Ohio Com.Pl.1985) (applying Ohio’s fifteen-year statute of limitations to a breach of contract action that would have been barred by Virginia’s five-year statute); cf. Mahalsky v. Salem Tool Co., 461 F.2d 581, 586 (6th Cir.1972) (holding this rule does not deny full faith and credit); Mackey v. Judy’s Foods, Inc., 867 F.2d 325, 328-29 (6th Cir.1989) (affirming the district court’s application of a similar rule in Tennessee). There is no question that this rule is both fair and constitutional.

applying Ohio's fifteen-year statute of limitations to a breach of contract action that would have been barred by Virginia's five-year statute


affirming the district court's application of a similar rule in Tennessee


Context: "A claim that punishment is excessive is judged ... by [the standards] that currently prevail."

taking into account state laws passed since commission of crime in evaluating proportionality of defendant's sentence

Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (relying in part on state laws enacted after defendant’s sentencing in concluding that the Eighth Amendment prohibits imposing capital punishment on mentally retarded defendants); see also Kennedy v. Louisiana, 554 U.S. 407, 422-26, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (taking into account state laws passed since commission of crime in evaluating proportionality of defendant’s sentence); United States v. One Parcel of Property Located at 5 Reynolds Lane, Waterford, Connecticut, 2013 WL 3853404, at *12-13 (D.Conn.

relying in part on state laws enacted after defendant's sentencing in concluding that the Eighth Amendment prohibits imposing capital punishment on mentally retarded defendants


Context: The state's evidence against O'Brien consisted only of his possession of ephedrine and pseudoephedrine, toluene, Liquid Fire, and an air tank. While the items found in O'Brien's possession can be used to manufacture methamphetamine, they also have valid uses and are legal to possess. The jury may have been entitled to be suspicious of O'Brien's possession of such chemicals and the air tank, but it did not have a sufficient basis for concluding, without speculation, that O'Brien intended to manufacture methamphetamine or that O'Brien took a substantial step toward the manufacture of methamphetamine. The evidence, therefore, was insufficient to support convictions for possession of ephedrine with the intent to manufacture and attempt to manufacture methamphetamine.

See United States v. Weston, 4 F.3d 672 (8 th Cir.1993) (evidence that defendant acquired gallon of methylamine from undercover agent insufficient in light of evidence that he had not told person who picked up chemical that he intended to manufacture methamphetamine, other chemicals and apparatus necessary for manufacture were not found, and no showing that defendant knew how to manufacture methamphetamine or knew anyone with that knowledge).

evidence that items seized from defendant's house were commonly used to manufacture methamphetamine, that mixture found in house was sediment of first step of manufacturing methamphetamine, and that strong odor of ether was detected in the house was sufficient

But see State v. Davis, 982 S.W.2d 739 (Mo.App.1998) (evidence that items seized from defendant’s house were commonly used to manufacture methamphetamine, that mixture found in house was sediment of first step of manufacturing methamphetamine, and that strong odor of ether was detected in the house was sufficient); Motley, 976 S.W.2d at 502 (evidence that defendant lived at residence containing items necessary to complete first step and part of second step of manufacture of methamphetamine, that a jar in defendant’s house contained a component of the first step in manufacturing methamphetamine, and that defendant actively took part in third step of manufacturing process at another unidentified location was sufficient).


evidence that defendant lived at residence containing items necessary to complete first step and part of second step of manufacture of methamphetamine, that a jar in defendant's house contained a component of the first step in manufacturing methamphetamine, and that defendant actively took part in third step of manufacturing process at another unidentified location was sufficient


Context: Those facts, however, do not mean that the proceeding was terminated in Hershey's favor. Where "there was no determination made on the merits" or "the matter was dropped in the interest of justice," without "evidence of .any proceeding beyond the summons," a plaintiff cannot establish that the proceeding was terminated in his favor.

"[T]his Court has already held [in Hygh ] that the New York Court of Appeals does not consider a dismissal in the interest of justice to be a favorable termination as a matter of law."

Levy v. Alfano, 47 F.Supp.2d 488, 496 (S.D.N.Y.1999); see Hygh v. Jacobs, 961 F.2d 359, 368 (2d Cir.1992) (because “[a] dismissal ‘in the interest of justice’ is neither an acquittal of the charges nor any determination of the merits,” but instead, “leaves the question of guilt or innocence unanswered,” it cannot, “as a matter of law ... provide the favorable termination required as the basis for a claim of malicious prosecution”); see also Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir.1995) (“[T]his Court has already held [in Hygh ] that the New York Court of Appeals does not consider a dismissal in the interest of justice to be a favorable termination as a matter of law.”). Because Hershey has not pled that the proceeding against him was resolved in his favor based on any merits determination, his claims for malicious prosecution on federal and state grounds must be dismissed.

because "[a] dismissal 'in the interest of justice' is neither an acquittal of the charges nor any determination of the merits," but instead, "leaves the question of guilt or innocence unanswered," it cannot, "as a matter of law ... provide the favorable termination required as the basis for a claim of malicious prosecution"


Context: More specifically, the government argues that the purpose of SS 922(g)(9) is to keep firearms away from presumptively risky individuals with a demonstrated history of actual or attempted violence. Appellee's Br. at 10-13. Again, the government's argument is persuasive. In 1996, Congress recognized that existing felon-in-possession prohibitions were not keeping firearms out of the hands of domestic abusers, because such individuals, although dangerous, were often charged with misdemeanors instead of felonies. 142 Cong. Rec. S2646-02 (1996) (statement of Sen. Lautenberg) (explaining that "many people who engage in serious spousal or child abuse ultimately are not charged with convicted of felonies ... and these people are still free under Federal law to possess firearms").

finding that "[fjirearms and domestic strife are a potentially deadly combination nationwide."

Hayes, 129 S.Ct. at 1087 (finding that “[fjirearms and domestic strife are a potentially deadly combination nationwide.”); 142 Cong. Rec. at S2646-02 (explaining that adding domestic violence misdemeanants to the Gun Control Act of 1968 in 1996 was intended to “close this loophole, and will help keep guns out of the hands of people who have proven themselves to be violent and a threat to those closest to them.”); see also United States v. Beavers, 206 F.3d 706, 710 (6th Cir.2000) (“[I]t should not surprise anyone that the government has enacted legislation in an attempt to limit the means by which persons who have a history of domestic violence might cause harm in the future”).

"[I]t should not surprise anyone that the government has enacted legislation in an attempt to limit the means by which persons who have a history of domestic violence might cause harm in the future"


Context: The plain text of the Bankruptcy Code sheds light on two important aspects of Section 305(a)(1). First, abstaining under Section 305(a)(1) must be in the interest of the debtor, in addition to the creditors.

"[T]he interests of both the debtor and its creditors.must be served by granting the requested relief."

In re Monitor Single Lift I, Ltd., 381 B.R. 455, 462 (Bankr.S.D.N.Y.2008) (“[T]he interests of both the debtor and its creditors.must be served by granting the requested relief.”); In re Schur Mgmt. Co., Ltd., 323 B.R. 123, 129 (Bankr.S.D.N.Y.2005) (“The test for suspension (as well as dismissal) is whether both the debtor and the creditors would be ‘better served’ by such action.”); In re Globo Comunicares e Participares S.A., 317 B.R. 235, 255 (S.D.N.Y.2004) (“This test requires that both creditors and debtors benefit from the dismissal, rather than applying a simple balancing test to determine whether dismissal is appropriate.”); In re 82 Milbar Blvd.

considering the "prejudice to the Debtor" in whether to dismiss the case under Section 305(a

Inc., 91 B.R. 213, 215 (Bankr.E.D.N.Y.1988) (“In addition to the creditors’ interest it is necessary to prove that dismissal under § 305 would also be in the best interest of the debtor.”); see also In re Williams, 305 B.R. 618, 621 (Bankr.D.Conn.2004) (considering the “prejudice to the Debtor” in whether to dismiss the case under Section 305(a)(1)); Alan N. Resnick & Henry J. Sommer, 2 Collier on Bankruptcy ¶ 305.01[1] (16th ed. 2012) (“Section 305 is reserved for those rare occasions when both the creditors generally and the debtor itself are better served by dismissal or suspension.”)


"This test requires that both creditors and debtors benefit from the dismissal, rather than applying a simple balancing test to determine whether dismissal is appropriate."


"In addition to the creditors' interest it is necessary to prove that dismissal under SS 305 would also be in the best interest of the debtor."


Context: The EEOC's effort to discredit the expert reports is misguided. It argues that "both experts focused only on the tiny subset of employees who took amounts of leave similar to the Class Members' maternity leaves." (EEOC Br. at 27.) However, both experts used sets of long-leave takers that contained more individuals than the EEOC included in the entire class when the experts made their comparisons.

"[T]he plaintiff must show that similarly situated individuals of a different group were treated differently."

Smith v. Xerox Corp., 196 F.3d 358, 370-71 (2d Cir.1999), overruled on other grounds by Meacham v. Knolls Atomic Poiuer Lab., 461 F.3d 134 (2d Cir.2006); Minott, 116 F.Supp.2d at 521; Adler v. Kent Vill. Housing Co., 123 F.Supp.2d 91, 97 (E.D.N.Y.2000) (“[T]he plaintiff must show that similarly situated individuals of a different group were treated differently.”); cf. Fisher, 70 F.3d at 1448 (stating that the way to prove sex discrimination “predicated on the detrimental effects of prolonged professional inactivity would be by comparing (a) the ... experience of women who took extended leaves of absence from their work (regardless of the reason), with (b) the ... experience of men who had also taken long leaves of absence”). Making a comparison to similarly situated employees is essential to proving a discrimination case because it is only illegal to treat employees of a protected class differently from similarly situated employees.

stating that the way to prove sex discrimination "predicated on the detrimental effects of prolonged professional inactivity would be by comparing (a) the ... experience of women who took extended leaves of absence from their work (regardless of the reason), with (b


Context: However, the Court's last substantive ruling in the Sataki civil action was issued on July 7, 2010 -- more than two-and-a-half weeks pri- or to the filing of the instant Motion to Disqualify. Once again, Klayman offers no explanation for this delay. In such circumstances, D.C. Circuit precedent counsels that an unexplained delay of this length renders the filing of his Affidavit for disqualification untimely.

See also In re Martin-Trigona, 573 F.Supp. 1237, 1244-45 (D.Conn.1983) (12-day delay from time movant indicated probability of recusal motion to time motion was actually filed rendered motion untimely); Bumpus v. Uniroyal Tire Co., 385 F.Supp. 711, 712 (E.D.Pa.1974) (finding section 144 motion and affidavit untimely where based on events occurring “from two weeks to as far back as two months before”).

expressing "serious doubt" about the timeliness of an affidavit based on remarks made by the judge "more than two weeks before" and a law review published by the judge "more than a year" earlier

See Smuck v. Hobson, 408 F.2d 175, 183 (D.C.Cir. 1969) (expressing “serious doubt” about the timeliness of an affidavit based on remarks made by the judge “more than two weeks before” and a law review published by the judge “more than a year” earlier).


finding section 144 motion and affidavit untimely where based on events occurring "from two weeks to as far back as two months before"


Context: The government need only prove a risk of loss to support McCauley's and Chendeka's convictions for bank fraud and conspiracy to commit bank fraud.

See United States v. Barakett, 994 F.2d 1107, 1111 (5th Cir.1993) (holding that deposits of forged checks exposed banks to risk of loss even though they recovered the funds); United States v. Saks, 964 F.2d 1514, 1519 (5th Cir.1992) (holding that fraudulent loan transaction exposed financial institutions to risk of loss even though loan was secured); United States v. Lemons, 941 F.2d 309, 316 (5th Cir.1991) (finding risk of loss to bank from forged endorsed check even though bank suffered no harm); United States v. Church, 888 F.2d 20, 23-24 (5th Cir.1989) (affirming bank fraud conviction for fraudulent overdrafts although “plan was no more likely to succeed than a request that the Bank exchange monopoly money for its face value in U.S. currency”).

Cf. Odiodio, 244 F.3d 398, 400-02 (finding no risk of loss when financial company rather than bank handled fraudulent instrument).


holding that fraudulent loan transaction exposed financial institutions to risk of loss even though loan was secured


finding risk of loss to bank from forged endorsed check even though bank suffered no harm


affirming bank fraud conviction for fraudulent overdrafts although "plan was no more likely to succeed than a request that the Bank exchange monopoly money for its face value in U.S. currency"


Context: Second, petitioner cites no authority, and we are aware of none, suggesting that due process requires a hearing, as opposed to consideration on the written record, when a post-conviction petitioner wants a new appointed attorney because of dissatisfaction with existing counsel. Such a requirement is not compelled by Geist, and we decline to so extend its rationale.

See Geist, 310 Or at 190 (holding that fundamental fairness is flexible and calls for such procedural protections as the particular situation demands); cf. Bartz v. State of Oregon, 314 Or 353, 368, 839 P2d 217 (1992) (post-conviction petitioner was not denied due process because of statutory time limitation for filing petition).


Context: More is exigible. Maine (unlike many other jurisdictions) does not recognize a cause of action in tort for an unembellished bad-faith breach of an insurance policy. Thus, when a plaintiff premises a claim for intentional infliction of emotional distress on an insurer-insured relationship, the plaintiff-insured must demonstrate that the defendant-insurer caused some harm apart from the withholding of the payments called for by the policy.

explaining that the insured must show, for example, that the plaintiff "suffered some accompanying physical injury, or, the contract was such that a breach of it will result in a serious emotional disturbance"

See Colford, 687 A.2d at 616 (explaining that, to maintain such an action against a disability insurer, the insured must demonstrate that the Company’s actions “arose independently of its denial of the disability claim”); see also Marquis v. Farm Family Mut. Ins. Co., 628 A.2d 644, 651 (Me.1993) (explaining that the insured must show, for example, that the plaintiff “suffered some accompanying physical injury, or, the contract was such that a breach of it will result in a serious emotional disturbance”).

explaining that, to maintain such an action against a disability insurer, the insured must demonstrate that the Company's actions "arose independently of its denial of the disability claim"


Context: Notwithstanding the district court's error, such erroneous reasoning does not preclude us from affirming on different grounds that are supported in the record.

affirming the denial of a SS 2254 claim on different grounds than those relied upon by the district court

See Spaziano v. Singletary, 36 F.3d 1028, 1041 (11th Cir.1994) (affirming the denial of a § 2254 claim on different grounds than those relied upon by the district court); see also Gay v. United States, 816 F.2d 614, 616 n. 1 (11th Cir.1987) (explaining that the principles developed in § 2254 cases also apply to § 2255 motions).

explaining that the principles developed in SS 2254 cases also apply to SS 2255 motions


Context: We recognize that the ninety-day statute of limitations applicable to habeas corpus actions has been declared unconstitutional.

See Currier, 862 P.2d 1357 (holding that ninety-day statute of limitations on habeas actions is unreasonable limitation that violates article I, section 11 of Utah Constitution); see also Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 681 (Utah 1995) (upholding court of appeals’ ruling that petition for habeas corpus was not barred by statute of limitations because section 78-12-31.1 had been declared unconstitutional by Currier). However, neither this court nor the court of appeals has held that any statute of limitations on habeas corpus petitions, no matter how long, would violate the Utah Constitution, nor has Johnson argued that the four-year statute of limitations is unconstitutional. In the absence of such a challenge or of another provision, therefore, we agree with the district court’s finding that the limitation period for habeas corpus actions applicable to this case is four years.

upholding court of appeals' ruling that petition for habeas corpus was not barred by statute of limitations because section 78-12-31.1 had been declared unconstitutional by Currier


Context: . To be clear, the District Court made no factual findings regarding the voluntariness of Awadallah's grand jury testimony and, instead, determined that suppression of his testimony was appropriate because "[n]o one will ever know how Awadallah would have testified had he been subpoenaed rather than imprisoned."

noting, in rejecting Awadallah's recantation defense, that "the questions of whether he was 'confused' or 'forgot' may be relevant to the issue of whether he knowingly lied to the grand jury"

Cf. United States v. Awadallah, 202 F.Supp.2d 17, 37 (S.D.N.Y.2002) ("Awadallah II ”) (noting, in rejecting Awadallah’s recantation defense, that "the questions of whether he was 'confused' or 'forgot' may be relevant to the issue of whether he knowingly lied to the grand jury”).

Awadallah III, 202 F.Supp.2d at 82 (rejecting the government’s inevitable discovery argument); see also Awadallah IV, 202 F.Supp.2d at 100. In so holding, the District Court reviewed the conditions of Awadallah’s confinement and the circumstances of his testimony before the grand jury and concluded that, if he had been subpoenaed before the grand jury (and not unlawfully arrested and detained prior to his testimony), he "would have been well-fed and well-rested, well-prepared and probably less frightened.”


Context: Next, we decline to consider his ineffective-assistance claims on direct appeal. Further, after careful de novo review, we enforce the appeal waiver as to the remaining challenges to Valencia-Mata's sentence.

See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir.2003) (en banc) (court should enforce appeal waiver and dismiss appeal where it falls within scope of waiver, plea agreement and waiver were entered into knowingly and voluntarily, and no miscarriage of justice would result); see also United States v. Scott, 627 F.3d 702, 704 (8th Cir.2010) (de novo review of validity and applicability of appeal waiver).


Context: Finally, with respect to the disparity in power between the harasser and the victim, Kidder was Penn's supervisor at the time he made the comment so this factor initially counsels in favor of Penn. However, there is very little other evidence regarding this relationship in the record. It appears that Kidder was only Penn's supervisor for a brief period of time before the comment was made, and after learning of the comment Penn requested and was granted a transfer. Accordingly, the Court declines to rely exclusively on the fact that Kidder was Penn's supervisor to conclude that the disparity in power was so pronounced that it necessarily made the comment so severe as to alter the conditions of Penn's employment.

explaining that there was a significant disparity in power where harasser was "a political appointee who sat in the Mayor's cabinet and headed an agency with more than a hundred employees, and plaintiff was a new secretary whose job required her to have a lot of one-on-one contact with [the harasser, who was her boss]"

See Okoli 648 F.3d at 221 (explaining that there was a significant disparity in power where harasser was “a political appointee who sat in the Mayor’s cabinet and headed an agency with more than a hundred employees, and plaintiff was a new secretary whose job required her to have a lot of one-on-one contact with [the harasser, who was her boss]”); Jennings v. Univ. of North Carolina, 482 F.3d 686, 696-97 (4th Cir.2007) (observing that the harasser was a 45 year-old man and the coach of the 17 year-old plaintiff-victim’s college soccer team and had tremendous power and influence of his players); see also Ziskie, 547 F.3d at 228 (discounting the one or two instances of supervisor harassment, where most of complained-of harassment was by co-workers, and stressing that the supervisor be havior did not “remotely resemble the repeated harassing conduct by someone in a position of authority [described in other Fourth Circuit cases]”).

discounting the one or two instances of supervisor harassment, where most of complained-of harassment was by co-workers, and stressing that the supervisor be havior did not "remotely resemble the repeated harassing conduct by someone in a position of authority [described in other Fourth Circuit cases]"


observing that the harasser was a 45 year-old man and the coach of the 17 year-old plaintiff-victim's college soccer team and had tremendous power and influence of his players


Context: 10. The court cannot amend the defective subpoena. Courts have typically held that subpoenas issued from the wrong court are void under Rule 45, unless the mistake is due to clerical error.

See e.g., Pauliewalnuts, 2008 WL 4326473 at *2 (court may enforce a subpoena captioned from the wrong court if the mistake is due to clerical error, but will not enforce a subpoena issued from the wrong court); see also Kupritz, 155 F.R.D. at 88 (a court might consider a subpoena captioned from the wrong court through an accident or mistake, but could not enforce a subpoena intentionally issued from an incorrect district).


Context: Title VII prohibits discrimination against "any individual" with regard to that individual's terms and conditions of employment or application for employment. The statute does not define "any individual," and although we could read the term literally, we have held that only those plaintiffs who are "employees" may bring a Title VII suit.

See McClure v. Salvation Army, 460 F.2d 553, 556 (5th Cir.1972) (stating that “[i]f the provisions of Title VII are to apply to the relationship between [the defendant] and [the plaintiff,] it is necessary that [the defendant] be an ‘employer’ engaged in an ‘industry affecting commerce’ and that [the plaintiff] be an ‘employee’ as those terms are defined” in the Act); Serapion v. Martinez, 119 F.3d 982, 985 (1st Cir.1997) (“Although the language [of Title VII] speaks of ‘any individual,’ courts long ago concluded that Title VII is directed at, and only protects, employees and potential employees.”); Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487, 491 (7th Cir.1996), cert. denied, — U.S. -, 118 S.Ct. 54, 139 L.Ed.2d 19 (1997) (overruling previous case refusing to “restrict[ ] the Act’s protection to only former, present, and potential employees”); Hyland v. New Haven Radiology Assocs., 794 F.2d 793, 796 (2d Cir.1986) (interpreting identical “any individual” language in the ADEA to provide coverage “solely in favor of a person who is an employee”); but see Sibley Mem. Hosp. v. Wilson, 488 F.2d 1338, 1341 (D.C.Cir.1973) (“any individual” not limited to “employees”); but cf. Gomez v. Alexian Bros. Hosp. of San Jose, 698 F.2d 1019, 1021 (9th Cir.1983) (recognizing suit for discriminatory failure to hire when the defendant employer failed to hire another corporation as an independent contractor and a potential employee of the rejected corporation brought suit directly against the defendant employer).

stating that "[i]f the provisions of Title VII are to apply to the relationship between [the defendant] and [the plaintiff,] it is necessary that [the defendant] be an 'employer' engaged in an 'industry affecting commerce' and that [the plaintiff] be an 'employee' as those terms are defined" in the Act


"Although the language [of Title VII] speaks of 'any individual,' courts long ago concluded that Title VII is directed at, and only protects, employees and potential employees."


overruling previous case refusing to "restrict[ ] the Act's protection to only former, present, and potential employees"


interpreting identical "any individual" language in the ADEA to provide coverage "solely in favor of a person who is an employee"


Context: Further, Rule 9(g) requires that items of special damage be specifically pled. A number of courts have held that at least in some contexts, requests for attorney's fees are items of special damages which must be specifically pled, failing which they are not recoverable.

failure to plead attorney's fees as an item of special damages did not bar recovery where the claim, though not pled, was advanced during pretrial conferences such that pleadings could properly be considered as having been amended to include such claim

See, e.g., In re American Cas. Co., 851 F.2d 794, 801-02 (6th Cir.1988) (claims for attorney’s fees are items of special damages which must be specifically pleaded under Rule 9(g)); Atlantic Purchasers, Inc. v. Aircraft Sales, Inc., 705 F.2d 712, 716 n. 4 (4th Cir.), cert. denied, 464 U.S. 848, 104 S.Ct. 155, 78 L.Ed.2d 143 (1983) (buyer’s failure to state specifically a claim for attorney’s fees under state’s unfair trade practices act barred recovery of such fees); Maidmore Realty Co., Inc. v. Maidmore Realty Co., Inc., 474 F.2d 840, 843 (3d Cir.1973); In re Odom, 113 B.R. 623 (C.D.Cal.Bankr.1990); cf. Crosby v. Old Republic Ins. Co., 978 F.2d 210, 211 n. 1 (5th Cir.1992) (failure to plead attorney’s fees as an item of special damages did not bar recovery where the claim, though not pled, was advanced during pretrial conferences such that pleadings could properly be considered as having been amended to include such claim); see also 5 C. Wright & A. Miller, Federal Practice & Procedure § 1310, at 702 (1990).

claims for attorney's fees are items of special damages which must be specifically pleaded under Rule 9(g


buyer's failure to state specifically a claim for attorney's fees under state's unfair trade practices act barred recovery of such fees


Context: In contrast to this approach, some courts have concluded that the common-law right of allocution applies to capital sentencing hearings. The majority of these jurisdictions, however, limit the right of allocution to pleas of mercy or leniency and expressions of future hope.

"under the common law applicable to capital sentencing proceedings at the time [the defendant] was sentenced, a defendant who timely asserts his right to allocute, and provides an acceptable proffer, must be afforded a fair opportunity to exercise this right"

Harris v. State, 306 Md. 344, 359, 509 A.2d 120 (1986) (“under the common law applicable to capital sentencing proceedings at the time [the defendant] was sentenced, a defendant who timely asserts his right to allocute, and provides an acceptable proffer, must be afforded a fair opportunity to exercise this right”); Homick v. State, 108 Nev. 127, 133-34, 825 P.2d 600 (1992) (concluding that capital defendants enjoy common-law right of allocution, limited to expressions of remorse, pleas for leniency and plans or hopes for future); see State v. Zola, 112 N.J. 384, 431-32, 548 A.2d 1022 (1988) (pursuant to its supervisory jurisdiction over state criminal trials, court authorized “narrowly-defined right of a capital defendant to make a brief unsworn statement in mitigation to the jury at the close of the presentation of evidence in the penalty phase [of a capital case]”), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146,103 L. Ed. 2d 205 (1989); State v. Lord, 117 Wash. 2d 829, 897, 900, 822 P.2d 177 (1991) (acknowledging right of allocution in capital case, but limiting right to pleas for mercy, and concluding that defendant went beyond permissible bounds of allocution and, thus, trial court properly permitted state to cross-examine him), cert. denied, 506 U.S. 856, 113 S. Ct. 164, 121 L. Ed. 2d 112 (1992).

pursuant to its supervisory jurisdiction over state criminal trials, court authorized "narrowly-defined right of a capital defendant to make a brief unsworn statement in mitigation to the jury at the close of the presentation of evidence in the penalty phase [of a capital case]"


acknowledging right of allocution in capital case, but limiting right to pleas for mercy, and concluding that defendant went beyond permissible bounds of allocution and, thus, trial court properly permitted state to cross-examine him


concluding that capital defendants enjoy common-law right of allocution, limited to expressions of remorse, pleas for leniency and plans or hopes for future


Context: I also agree with defendant that plaintiff is barred from seeking damages stemming from his wife's death, under New York's public policy against allowing individuals to profit from their own wrongdoing.

plaintiffs knowing participation in the unauthorized use of a motor vehicle was a "serious violation of the law" that precluded her suit against her accomplice driver even though the driver negligently caused the accident and the plaintiffs injuries

See, e.g., Manning v. Brown, 91 N.Y.2d 116, 120-22, 667 N.Y.S.2d 336, 689 N.E.2d 1382 (1997) (plaintiffs knowing participation in the unauthorized use of a motor vehicle was a “serious violation of the law” that precluded her suit against her accomplice driver even though the driver negligently caused the accident and the plaintiffs injuries); Barker v. Kallash, 63 N.Y.2d 19, 28-29, 479 N.Y.S.2d 201, 468 N.E.2d 39 (1984) (plaintiff could not seek damages against defendants who gave him gunpowder to make a pipe bomb, which severely injured plaintiff when it exploded as plaintiff was making it, because plaintiffs own wrong-making a pipe bomb-constituted a serious violation of law that transcended contributory negligence and comparative fault); Riggs v. Palmer, 115 N.Y. 506, 511-512, 22 N.E. 188 (1889) (stating principle that “[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime”); see also Alami v. Volkswagen of America, Inc., 97 N.Y.2d 281, 287, 739 N.Y.S.2d 867, 766 N.E.2d 574 (2002) (recognizing public policy against permitting judicial relief to those injured in the course of committing a serious criminal act, but refusing to extend policy “beyond claims where thé parties to the suit were involved in the underlying criminal conduct ... ”) (emphasis added).

recognizing public policy against permitting judicial relief to those injured in the course of committing a serious criminal act, but refusing to extend policy "beyond claims where the parties to the suit were involved in the underlying criminal conduct ... "


plaintiff could not seek damages against defendants who gave him gunpowder to make a pipe bomb, which severely injured plaintiff when it exploded as plaintiff was making it, because plaintiffs own wrong-making a pipe bomb-constituted a serious violation of law that transcended contributory negligence and comparative fault


stating principle that "[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime"


Context: Having determined that nothing in the records was relevant to appellant's purposes, the court concluded that the State's strong interest in protecting the privacy of its students generally, and this student particularly, outweighed appellant's need for disclosure of the records. Having carefully reviewed the subject records, we agree with the trial court's conclusion and hold that the trial court did not abuse its discretion when it granted the Board's motion for a protective order.

no abuse of discretion when trial court, after in camera review, denied defendant's motion for production of entire contents of FBI's informant file

See United States v. Phillips, 854 F.2d 273, 278 (7th Cir.1988) (no abuse of discretion when trial court, after in camera review, denied defendant’s motion for production of entire contents of FBI’s informant file); see also Couser v. State, 282 Md. 125, 140, 383 A.2d 389 (1978) (request for production of documents in the State’s control ordinarily within the trial court’s discretion); Williams v. Moran, 248 Md. 279, 291, 236 A.2d 274 (1967) (administration of discovery rules lies within the trial court’s discretion, which will not be disturbed absent a showing of abuse); Craig v. State, 76 Md.App. 250, 271, 544 A.2d 784 (1988) (trial court did not err when it refused to disclose to defendant accused of child sexual abuse therapist’s notes containing statements of child witnesses and other related information), rev’d on other grounds, 316 Md. 551, 560 A.2d 1120 (1989), vacated and remanded, — U.S. -, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).

request for production of documents in the State's control ordinarily within the trial court's discretion


administration of discovery rules lies within the trial court's discretion, which will not be disturbed absent a showing of abuse


trial court did not err when it refused to disclose to defendant accused of child sexual abuse therapist's notes containing statements of child witnesses and other related information


Context: In contrast to these authorities, numerous courts have held that employee compensation is "subject to reduction" under SS 541.118(a) if a policy of the employer provides for deductions disallowed by the DOL regulations for salaried employees regardless of whether such deductions have been made.

See Kinney, 994 F.2d at 11; Abshire, 908 F.2d at 487; Banks v. City of North Little Rock, 708 F.Supp. 1023, 1025 (E.D.Ark.1988) (no showing of actual deduction needed); Hawks v. City of Newport News, Va., 707 F.Supp. 212, 215 (E.D.Va.1988) (employer’s policy under attack under FLSA and whether policy has been applied does not alter policy itself); Persons v. City of Gresham, Or., 704 F.Supp. 191, 194 (D.Or.1988) (immaterial that an instance of actual deduction not alleged); Knecht v. City of Redwood City, 683 F.Supp. 1307, 1311 (N.D.Cal.1987) (lack of actual pay reduction does not alter analysis); see also Shockley, 997 F.2d at 21-25 (focusing upon defendant’s policy); Michigan Ass’n of Governmental Employees, 992 F.2d at 85-86 (focusing upon policy but, finding policy ambiguous, looking to application of policy). Moreover, courts have explicitly considered the impact of the enigmatic paragraph in the 1986 letter ruling upon their analysis and, in the opinion of the undersigned, correctly interpreted the 1986 letter ruling so that, although an occasional unpermitted deduction which is inadvertent or unintentional would not change an employee’s salary status, the frequency of actual deductions is immaterial to finding employees’ compensation “subject to reduction” where the employer has a policy allowing deductions for unpermitted reasons.

employer's policy under attack under FLSA and whether policy has been applied does not alter policy itself


April 16, 1991); Knecht, 683 F.Supp. at 1311; cf. Banks, 708 F.Supp. at 1024-25 (letter ruling relied upon by defendant but not provided to court). But see Harris, 709 F.Supp. at 241; District of Columbia Nurses’ Ass’n, 1988 WL 156191, at *2 n. 1. Even if the cited paragraph from the 1986 letter ruling had the significance urged upon the Court by defendants, the “letter ruling cannot override the express provisions of a Department of Labor regulation” in any event.