Context: None of these findings of fact are clearly erroneous in light of the detectives' testimony. Based on these findings, we find no error in the district court's conclusion that, considering the totality of the circumstances, the detectives did not overcome Dehghani's will.

See United States v. Santos-Garcia, 313 F.3d 1073, 1079 (8th Cir.2002) (noting that raised voices and promises of leniency do not render a confession involuntary); cf. Gingras v. Weber, 543 F.3d 1001, 1003 (8th Cir.2008) (finding no involuntary confession where defendant had stopped crying by the time he confessed).


Context: Clearly such expressions of legislative intent are valid conditions imposed upon funds appropriated for salary increases and represent a valid exercise of the Legislature's power to control the purse strings of state government. See Henry, 346 So.2d at 158. Moreover, the clause does not change, amend or repeal existing law because, the Regents already had ultimate discretion or authority over the manner of distributing salary increases to their employees subject to collective bargaining and good faith negotiating obligations under SDCL ch. 3-18.

See also Jewell Nursery Co. v. State, 4 S.D. 213, 56 N.W. 113, 114 (1893)(authority of Regents subject to power of Legislature to fix general appropriations limits beyond which Regents have no authority to bind state by contract).

See Heege, 428 N.W.2d at 541 (Regents, while' under duty to negotiate in good faith, are not required to agree to a contract or any specific rates of pay, wages or other conditions).


Context: The examiner's reasoning sets up a perceived credibility issue that relates to both tinnitus and hearing loss, which is for the Board to resolve. The examiner's perceived lack of information requires a response by the Board. Moreover, it is unclear from the Board's statement of reasons or bases whether the record and the appellant's initial claim raised the issue of entitlement to benefits for tinnitus.

See Clemons, 23 Vet.App. at 3 (stating that a claimant has no special medical expertise, but may testify as to symptoms he can observe, and holding that the Board may not deny a claim for benefits based on one condition when the evidence submitted and developed during the processing of the claim showed that the claimant’s symptoms emanated from another condition); see also Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (Board required to consider all issues raised by the claimant or by evidence of record). Therefore, the Court will remand this matter for the Board to weigh all the evidence of onset of the appellant’s tinnitus and make a factfinding, with due regard for the benefit of the doubt provision, as to that matter.

stating that a claimant has no special medical expertise, but may testify as to symptoms he can observe, and holding that the Board may not deny a claim for benefits based on one condition when the evidence submitted and developed during the processing of the claim showed that the claimant's symptoms emanated from another condition


Context: We speak here of discrimination in employment based on an individual's disability. In parsing the ADA, however, we draw freely on precedents in other types of discrimination cases.

recognizing that "the ADA is interpreted in a manner similar to Title VII"

See EEOC v. Aniego, Inc., 110 F.3d 135, 145 n. 7 (1st Cir.1997) (recognizing that "the ADA is interpreted in a manner similar to Title VII”); see also Serapion v. Martinez, 119 F.3d 982, 985 (1st Cir.1997) ("We regard Title VII, ADEA, ERISA, and FLSA as standing in pari passu and endorse the practice of treating judicial precedents interpreting one statute as instructive in decisions involving another.”).

"We regard Title VII, ADEA, ERISA, and FLSA as standing in pari passu and endorse the practice of treating judicial precedents interpreting one statute as instructive in decisions involving another."


Context: Second, her testimony about the fraud indicators helped the jury better understand the significance of the commonalities in the tax returns. Third, Calabrese's testimony was not the type of specialized testimony that needed to be admitted under Rule 702 because it was based on a summary of documents related to the case, the jury could have reviewed the documents itself and noticed the commonalities among the returns filed under Variste's EFIN, and the opinions given by Calabrese related to the summary that she prepared.

"Rule 701 does not prohibit lay witnesses from testifying based on particularized knowledge gained from their own personal experiences."

See United States v. Hamaker, 455 F.3d 1316, 1331-32 (11th Cir.2006) (concluding a financial analyst from the Federal Bureau of Investigation gave lay testimony when he summarized thousands ' of financial documents, compared time sheets to payroll entries, and testified a fraud victim was billed for work that was performed for someone else, because “while [the agent’s] expertise and the use of computer software may have made him more efficient at reviewing [the company’s] records, his review itself was within the capacity of any reasonable lay person”); see also United States v. Hill, 643 F.3d 807, 841 (11th Cir.2011) (“Rule 701 does not prohibit lay witnesses from testifying based on particularized knowledge gained from their own personal experiences.”).

concluding a financial analyst from the Federal Bureau of Investigation gave lay testimony when he summarized thousands ' of financial documents, compared time sheets to payroll entries, and testified a fraud victim was billed for work that was performed for someone else, because "while [the agent's] expertise and the use of computer software may have made him more efficient at reviewing [the company's] records, his review itself was within the capacity of any reasonable lay person"


Context: Chi raised his Vienna Convention claim at his trial, but he did not raise the claim on direct appeal in state court. Both the TCCA in Chi's state-habeas proceedings and the district court in Chi's federalhabeas proceedings determined that the failure to raise this issue on direct appeal rendered it procedurally defaulted.

"It is well-settled 'that the writ of habeas corpus should not be used to litigate matters which should have been raised on direct appeal.' " (citing Ex parte Goodman, 816 S.W.2d 383, 385 (Tex.Crim.App.1991

See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (determining there can be no federal review of a state court decision if that decision is based on an independent state law ground, either substantive or procedural); see also Ex parte Rojas, 981 S.W.2d 690, 691 (Tex.Crim.App.1998) (“It is well-settled ‘that the writ of habeas corpus should not be used to litigate matters which should have been raised on direct appeal.’ ” (citing Ex parte Goodman, 816 S.W.2d 383, 385 (Tex.Crim.App.1991))).


Context: Under Rice, the term "adjacent" cannot include every possible source of water that eventually flows into a navigable-in-fact waterway. Rather, adjacency necessarily implicates a "significant nexus" between the water in question and the navigable-in-fact waterway.

finding that Riverside Bayview Homes turned on the "significant nexus" between the wetlands and the "navigable waters"

See SWANCC, 531 U.S. at 167, 121 S.Ct. 675 (finding that Riverside Bayview Homes turned on the “significant nexus” between the wetlands and the “navigable waters”); see also Rice, 250 F.3d at 271 (requiring that the adjacent body of water be “sufficiently linked” to the navigable-in-fact water).

requiring that the adjacent body of water be "sufficiently linked" to the navigable-in-fact water


Context: Pennsylvania does indeed have an interest in Franklin's claim because its professional reputation and business contacts are based in that state. Although New York has an interest in protecting its media defendants and providing an environment for the free exchange of ideas, Pennsylvania's interest in protecting its citizens from harm to their proprietary interests resulting from a defamatory publication, in addition to providing compensation for such injury, outweighs New York's interest on this issue.

See Fitzpatrick, 537 F.Supp. at 171-72 (holding that Pennsylvania’s interest in compensating victim of defamation outweighed New York’s interests in protecting free discussion and financial injury to defendant); Wilson, 970 F.Supp. at 414 (holding that “the state of plaintiffs domicile generally has the greatest concern in vindicating plaintiffs good name and providing compensation for harm caused by defamatory publication”); cf. Buckley, 782 F.Supp. at 1042 (refusing to apply Pennsylvania law when plaintiff did not reside in Pennsylvania at the time of the publication).

holding that Pennsylvania's interest in compensating victim of defamation outweighed New York's interests in protecting free discussion and financial injury to defendant


holding that "the state of plaintiffs domicile generally has the greatest concern in vindicating plaintiffs good name and providing compensation for harm caused by defamatory publication"


Context: . Other circuit courts have considered favorably the question of constitutional entitlement to non-psychiatric experts in capital cases.

"There can be no doubt that an effective defense sometimes requires the assistance of an expert witness____ Moreover, provision for experts reasonably necessary to assist indigents is now considered essential to the operation of a just judicial system."

Williams v. Martin, 618 F.2d 1021, 1025-26 (4th Cir.1980) (“There can be no doubt that an effective defense sometimes requires the assistance of an expert witness____ Moreover, provision for experts reasonably necessary to assist indigents is now considered essential to the operation of a just judicial system.”); Mason v. Arizona, 504 F.2d 1345, 1351 (9th Cir.1974) (“[T]he effective assistance of counsel guarantee of the Due Process Clause requires, when necessary, the ... appointment of investigative assistance for indigent defendants in order to insure effective preparation of their defense by their attorneys.”), cert. denied, 420 U.S. 936, 95 S.Ct. 1145, 43 L.Ed.2d 412 (1975); cf. Westbrook v. Zant, 704 F.2d 1487, 1494-97 (11th Cir.1983) (state must furnish psychiatric or psychological experts to indigent capital defendant if evidence not available from other sources is necessary to prove mitigating circumstances); Knott v. Mabry, 671 F.2d 1208, 1212-13 (8th Cir.1982) (failure of counsel to obtain expert to contradict government witness may constitute "constitu tional flaw in the representation of a defendant----"). The former Fifth Circuit considered this question in Hoback v. Alabama, 607 F.2d 680, 682 & n. 1 (5th Cir.1979), and said that, while there might be some situations where states could be required to furnish experts, that question need not be decided in that case.


failure of counsel to obtain expert to contradict government witness may constitute "constitu tional flaw in the representation of a defendant----"


"[T]he effective assistance of counsel guarantee of the Due Process Clause requires, when necessary, the ... appointment of investigative assistance for indigent defendants in order to insure effective preparation of their defense by their attorneys."


Context: While it is true that a foreclosure action and an acceleration of the balance due based upon the same default may bar a subsequent action on that default, an acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue.

holding that a mortgagee can successfully recover twice on one mortgage for multiple periods of default because the payments were different "installments"

See[ Olympia Mortgage Corp. v. Pugh, 774 So.2d 863, 866 (Fla. 4th DCA 2000)] (“We disagree that the election to accelerate placed future installments at issue.”); see also Greene v. Boyette, 587 So.2d 629, 630 (Fla. 1st DCA 1991) (holding that a mortgagee can successfully recover twice on one mortgage for multiple periods of default because the payments were different “installments”), For example, a mortgagor may prevail in a foreclosure action by demonstrating that she was not in default on the payments alleged to be in default, or that the mortgagee had waived reliance on the defaults.

"We disagree that the election to accelerate placed future installments at issue."


Context: Both the immigration court and the Board noted that the 180 day time period prescribed in SS 242B(c)(3)(A) could be subject to equitable tolling due to Muresan's ineffective assistance of counsel and, thus, suspended from running until Scorteanu had received actual notice.

holding that equitable tolling is available where petitioner's attorney engaged in fraudulent or deceptive acts

See Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir.2003) (holding that equitable tolling is available where petitioner’s attorney engaged in fraudulent or deceptive acts); see also Rodriguez-Lariz v. INS, 282 F.3d 1218, 1224 (9th Cir.2002) (recognizing equitable tolling of deadlines and numerical limits on motions to reopen or reconsider during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error).


Context: The D.C. Circuit has made clear that "[w]hether a particular reassignment of duties constitutes an adverse action ... is generally a jury question," and has stated that a district court "may not take that question away from the jury if a reasonable juror could find that the reassignment left the plaintiff with significantly diminished responsibilities."

Czekalski v. Peters, 475 F.3d 360, 365 (D.C.Cir.2007) (citations omitted) (concluding that a jury could find adversity where, after a lateral transfer, plaintiff supervised fewer employees and managed a smaller budget); see also Pardo-Kronemann v. Donovan, 601 F.3d 599, 607 (D.C.Cir.2010) (noting that “the fact-finder must compare the position[s]” at issue); Evans v. D.C., 754 F.Supp.2d 30, 47 (D.D.C.2010) (“it is for a jury to decide whether plaintiffs diminished duties and responsibilities rose to the level of an adverse employment action”).

noting that "the fact-finder must compare the position[s]" at issue


"it is for a jury to decide whether plaintiffs diminished duties and responsibilities rose to the level of an adverse employment action"


Context: .We decline to consider whether the Government waived its plea-agreement-waiver argument by failing to assert it in Jenners's initial appeal because Jenners did not address this issue either in his brief or at oral argument.

stating that "[t]his court, of course, does not normally address issues not raised in the district court nor does it normally address issues not raised by a litigant on appeal"

See United States v. Walrath, 324 F.3d 966, 970 n. 2 (8th Cir.2003) (declining to address an argument that was not raised before the district court or in the briefs or at oral argument); see also Latorre v. United States, 193 F.3d 1035, 1037 n. 1 (8th Cir.1999) (stating that "[t]his court, of course, does not normally address issues not raised in the district court nor does it normally address issues not raised by a litigant on appeal”).


Context: We find that he properly included Fleming's medical limitations in the RFC finding and the hypothetical to the VE that were supported by substantial evidence in the record after discounting Fleming's credibility. Although Fleming points to a number of detailed errors, as we have held previously, we will not reverse where, as here, "the ALJ took into account those limitations for which there was record support that did not depend on [the claimant's] subjective complaints."

Bayliss, 427 F.3d at 1217 (upholding ALJ decision despite failure to perform function-by-function assessment and failure to consider drowsiness or reactions to stress); see also Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir.2008) (finding that the ALJ adequately captured limitations to “concentration, persistence, or pace” with a restriction to “simple tasks”).

finding that the ALJ adequately captured limitations to "concentration, persistence, or pace" with a restriction to "simple tasks"


Context: This Court, however, has typically construed attacks on jurisdictional elements as a challenge to the sufficiency of the evidence supporting that particular jurisdictional element.

"But, as we see it, 'any matter within the jurisdiction' is merely a jurisdictional element, for which no mens rea is required."

See United States v. Blankenship, 382 F.3d 1110, 1131 (11th Cir.2004) (construing defendant’s claim that the District Court lacked jurisdiction under 18 U.S.C. § 1001 as an attack on the sufficiency of the evidence); United States v. Key, 76 F.3d 350, 353 (11th Cir.1996) (“Whether the government proved [a] jurisdictional element is measured as a challenge to the sufficiency of the evidence.”); see also United States v. McQueen, 727 F.3d 1144, 1152 (11th Cir.2013) (“But, as we see it, ‘any matter within the jurisdiction’ is merely a jurisdictional element, for which no mens rea is required.”). Thus we analyze this issue using the standard of review for sufficiency of the evidence claims.

construing defendant's claim that the District Court lacked jurisdiction under 18 U.S.C. SS 1001 as an attack on the sufficiency of the evidence


"Whether the government proved [a] jurisdictional element is measured as a challenge to the sufficiency of the evidence."


Context: That is, the same issue is presented in each action. When "mirror image" issues are present, "the havoc which can be produced by disparate proceedings, ... the waste and duplication (or triplication) of judicial trial and appellate resources, and the ease with which this can be avoided," weigh in favor of an anti-suit injunction.

"the underlying dispute is over one issue, insurance coverage, arising from one incident"

Admiral Ins., 848 S.W.2d at 255 (“the underlying dispute is over one issue, insurance coverage, arising from one incident”); cf. Christensen, 719 S.W.2d at 163 (“[w]hile both proceedings here undoubtedly concern the same general subject matter, Christensen’s California lawsuit raises issues and involves parties that differ from those in the Texas litigation”); Gannon, 706 S.W.2d at 308 (“the issues of the prior Canadian suit and the Texas action are similar ”); see also PPG Indus., Inc. v. Continental Oil Co., 492 S.W.2d 297 (Tex. Civ.App.—Houston [1st Dist.] 1973, writ ref'd n.r.e.) (affirming a trial court’s grant of a temporary injunction restraining PPG from continuing to prosecute a Louisiana suit that was filed subsequent to and was identical to the Texas action) (cited with approval in Admiral Ins., 848 S.W.2d at 257).

"[w]hile both proceedings here undoubtedly concern the same general subject matter, Christensen's California lawsuit raises issues and involves parties that differ from those in the Texas litigation"


"the issues of the prior Canadian suit and the Texas action are similar "


Context: Lastly, plaintiffs' claims against the network defendants are "closely linked" to the arbitrable claims against the issuing banks. This Court has previously held plaintiffs' claims against the parent corporations of their issuing banks arbitrable because the alleged price-fixing conspiracy is "at the heart of the underlying contract[s] containing the arbitration agreement^]."

finding estoppel warranted for claims "linked textually" to the contract containing the arbitration clause and "bound up" with the arbitrated dispute

See JLM, 387 F.3d at 178 n. 7 (“[A]ny claim against an Owner jointly liable for the injury caused by [any one] contract is inextricably intertwined with the arbitrable claim against the Owner liable under that contract.”); see also Choctaw, 271 F.3d at 407 (finding estoppel warranted for claims “linked textually” to the contract containing the arbitration clause and “bound up” with the arbitrated dispute).

"[A]ny claim against an Owner jointly liable for the injury caused by [any one] contract is inextricably intertwined with the arbitrable claim against the Owner liable under that contract."


Context: "Absent objection, ... [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate's recommendation." Additionally, "failure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objections are precluded upon appeal."

stating that "[o]bjection to a magistrate's report preserves only those objections that are specified"

Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992); see Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in a magistrate’s recommendation, as well as the magistrate’s failure to make additional findings); see also Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that “[o]bjection to a magistrate’s report preserves only those objections that are specified”); Borden v. Sec. of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”).

holding that objections are required when challenging findings actually set out in a magistrate's recommendation, as well as the magistrate's failure to make additional findings


holding that appellant was entitled to a de novo review, "however he was not entitled to a de novo review of an argument never raised"


Context: Even in a light favorable to the Plaintiffs, so varied are the facts surrounding each individual's exposure, so varied are the individual reactions of persons exposed to malathion in this fashion, and so uncertain are the long term health consequences of this type exposure, only something in the nature of a general clinic (in the nature of the Defendants' feared HMO) would suffice to meet all the individualized assessment needs of the putative class members. Such a program would in actuality be more akin to a study than to a monitoring program, and this appears entirely unsupported in the law as a separate cause of action. In any event, while Plaintiffs may claim certain common issues of fact, the individualized considerations of this claim work to defeat a finding of commonality sufficient to support class certification.

See Barnes, 161 F.3d at 145-46 (finding that individualized issues of causation, addiction, the affirmative defenses of comparative and contributory negligence and the need for medical monitoring presented too many individual issues to permit class certification and medical monitoring relief); see also Guillory v. Am. Tobacco Co., No. 97 C. 8641, 2001 WL 290603, at *6 (N.D.Ill. Mar.20, 2001); Reilly, 965 F.Supp. at 598 (although all plaintiffs were exposed to lead emission, finding no commonality because whether and to what extent emissions affected each class member is not common, and any common claims changed by individual facts and situation of each plaintiff).


Context: To the extent they claim the ordinance denies them total access to their market, this contention is rejected. More likely, however, plaintiffs argue that the ordinance reduces their market from an economic perspective that it will no longer be profitable as before the ordinance. Whether or not this proves to be the case, it does not show lack of narrow tailoring.

First Amendment requires only that ordinance refrain from denying reasonable opportunity to operate business and does not require invalidation of regulations which merely reduce plaintiffs' audience

See Renton, 475 U.S. at 54, 106 S.Ct. at 932 (First Amendment requires only that ordinance refrain from denying reasonable opportunity to operate business and does not require invalidation of regulations which merely reduce plaintiffs’ audience); see also, DLS, Inc., 107 F.3d at 413 (First Amendment analysis generally is not concerned with economic impact and that, unless the ordinance were intended to destroy an entire market, an adverse effect will not violate the First Amendment); Spokane Arcade, Inc. v. City of Spokane, 75 F.3d 663, 665 (9th Cir.1996) (“it is irrelevant [for First Amendment purposes] whether a regulation will result in lost profits, higher overhead costs, or even prove commercially unfeasible for an adult business.”).


"it is irrelevant [for First Amendment purposes] whether a regulation will result in lost profits, higher overhead costs, or even prove commercially unfeasible for an adult business."