Context: Caprio, however, must demonstrate that his lack of awareness as to defendant's actual motivation was reasonable.

noting that 90-day requirement to file EEOC charge begins to run when "facts that would support a charge of discrimination under Title VII were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff'

See McCants v. Glickman, 180 F.Supp.2d 35, 40 (D.D.C.2001) (rejecting extension of 45-day deadline where plaintiff had a “reasonable suspicion” of discriminatory motive based on facts known to him); see also Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir.1975) (noting that 90-day requirement to file EEOC charge begins to run when “facts that would support a charge of discrimination under Title VII were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff’); cf. Pacheco v. Rice, 966 F.2d 904, 906-907 (5th Cir.1992) (denying equitable tolling of the limitations period because a complainant has a duty of “diligent inquiry ... to proceed with a reasonable investigation in response to an adverse event”).

rejecting extension of 45-day deadline where plaintiff had a "reasonable suspicion" of discriminatory motive based on facts known to him


denying equitable tolling of the limitations period because a complainant has a duty of "diligent inquiry ... to proceed with a reasonable investigation in response to an adverse event"


Context: The record before us fails to demonstrate that Fuzer suffered an actual and substantial prejudice because we are aware of no case law, nor has any been provided to us, even suggesting that a felon has a right to serve his federal and state sentences concurrently.

"Koller has no right to serve his sentences on these two different convictions, one state and one federal, concurrently, and thus, he suffered no prejudice"

United States v. Koller, 956 F.2d 1408, 1415-16 (7th Cir.1992) (“Koller has no right to serve his sentences on these two different convictions, one state and one federal, concurrently, and thus, he suffered no prejudice”); see also Sherlock, 962 F.2d at 1354 (noting that defendant offered “no more than bare allegations that the delay deprived him of concurrent sentencing’’); United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1051 (9th Cir.1990) (rejecting defendant’s claim that he would have received concurrent federal and state sentences had he been tried sooner as “entirely speculative”).

noting that defendant offered "no more than bare allegations that the delay deprived him of concurrent sentencing''


rejecting defendant's claim that he would have received concurrent federal and state sentences had he been tried sooner as "entirely speculative"


Context: We have interpreted this scheme, in a variety of circumstances, as vesting sole authority to make post-dispositional decisions in the director of the agency responsible for supervision.

in case of delinquent child committed to agency custody, holding that trial court did not have authority to release juvenile from agency custody, and noting that "[i]n delinquency cases, the only power that the trial court retains after a commitment -- and even then, only if it is reserved in the commitment order -- is a veto power over [the agency]'s decision to release the delinquent juvenile"

See, e.g., In re K.A., 879 A.2d 1, 11 (D.C.2005) (in case of delinquent child committed to agency custody, holding that trial court did not have authority to release juvenile from agency custody, and noting that “[i]n delinquency cases, the only power that the trial court retains after a commitment — and even then, only if it is reserved in the commitment order — is a veto power over [the agency]’s decision to release the delinquent juvenile”); In re M.O.R., 851 A.2d 503, 512 (D.C.2004) (in case of delinquent child sentenced to probation, holding that court had no authority to extend term of probation in absence of motion to that effect from agency director, and noting that the agency director “is the person with statutory authority to terminate pro bation before its expiration date”); In re P.S., 821 A.2d 905, 912 (D.C.2003) (in case of delinquent child committed to agency’s custody, holding that court had no authority to order agency to place juvenile in a particular facility); see also In re J. M. W., 411 A.2d 345, 347 (D.C.1980) (“It is generally well established that a court is without authority to suspend or impose a sentence of a nature or in a manner not specified by statute.” “As a result, the judiciary is frequently without power to modify, review or alter a sentence, regardless of a change in circumstances, once it becomes final.”) (citations omitted).

"It is generally well established that a court is without authority to suspend or impose a sentence of a nature or in a manner not specified by statute." "As a result, the judiciary is frequently without power to modify, review or alter a sentence, regardless of a change in circumstances, once it becomes final."


in case of delinquent child sentenced to probation, holding that court had no authority to extend term of probation in absence of motion to that effect from agency director, and noting that the agency director "is the person with statutory authority to terminate pro bation before its expiration date"


in case of delinquent child committed to agency's custody, holding that court had no authority to order agency to place juvenile in a particular facility


Context: Moreover, of the gang evidence adduced at trial, Detective Caffey's testimony was particularly probative of the conspiracy charge, because it served to clarify certain ambiguities and fill in the gaps left by the other gang evidence.

See United States v. Bradberry, 466 F.3d 1249, 1253-54 (11th Cir.2006) (evidence of defendant’s gang membership was probative, because it helped explain his connection to other individuals and circumstances in which they committed charged offense); Jernigan, 341 F.3d at 1284 (evidence of defendant’s membership in gang that used color red as symbol and wrapped weapons in red bandanas was “especially probative” in light of evidence that defendant’s weapon was found wrapped in red bandana); see also Augustin, 661 F.3d at 1126 (gang evidence became relevant upon admission of recordings of defendant discussing such gang and likening himself to its leader).

evidence of defendant's gang membership was probative, because it helped explain his connection to other individuals and circumstances in which they committed charged offense


evidence of defendant's membership in gang that used color red as symbol and wrapped weapons in red bandanas was "especially probative" in light of evidence that defendant's weapon was found wrapped in red bandana


Context: Even if, contrary to the fact, the defendant was prejudiced by the government's change in theory, such prejudice could have been obviated by the defense utilizing the opportunity to recall witnesses and to have the matter adjourned, if necessary, for that purpose.

"The rule is clear that a defendant's failure to recall a witness, despite permission to do so, undermines a claim of prejudice based on a disclosure that materialized after the witness finished testifying (but before the trial ended

See Mapp, 170 F.3d at 337 (“Finally, by giving him the opportunity to respond by presenting additional evidence or argument to the jury, the district court carefully avoided causing Moore any arguable prejudice in the giving of the supplemental instruction.”); cf. the following belated disclosure cases which discuss claims of prejudice and the ability to recall witnesses: United States v. Houlihan, 92 F.3d 1271, 1291 (1st Cir.1996) (“The rule is clear that a defendant’s failure to recall a witness, despite permission to do so, undermines a claim of prejudice based on a disclosure that materialized after the witness finished testifying (but before the trial ended).”); United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir.1988) (finding that where defendant was allowed to recall witnesses and re-examine them regarding belatedly disclosed evidence, defendant “had substantial opportunity to use the [evidence] and to cure any prejudice caused by the delayed disclosure”); United States v. Mourad, 729 F.2d 195, 199 (2d Cir.1984) (reversal not warranted notwithstanding government’s failure to timely produce evidence favorable to defendants given defendants did not request a continuance, recall witnesses for further examination, or introduce rebuttal evidence, in an effort to neutralize the claimed prejudice).

"Finally, by giving him the opportunity to respond by presenting additional evidence or argument to the jury, the district court carefully avoided causing Moore any arguable prejudice in the giving of the supplemental instruction."


finding that where defendant was allowed to recall witnesses and re-examine them regarding belatedly disclosed evidence, defendant "had substantial opportunity to use the [evidence] and to cure any prejudice caused by the delayed disclosure"


reversal not warranted notwithstanding government's failure to timely produce evidence favorable to defendants given defendants did not request a continuance, recall witnesses for further examination, or introduce rebuttal evidence, in an effort to neutralize the claimed prejudice


Context: The Fourteenth Amendment bars "any State [from] depriving] any person of life, liberty, or property, without due process of law." U.S. Const. amend. In this conception, due process encompasses certain "fundamental" rights.

See Twining, 211 U.S. at 99, 29 S.Ct. 14 (“[I]t is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law.”); see also Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258 (speaking of enumerated rights together with implied fundamental rights in the context of substantive due process).

"[I]t is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law."


Context: Riggins filed a petition for habeas corpus in June 1998, claiming that the state courts' rejections of his ineffectiveness claim were "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'^ Although Riggins argues his testimony was credible (and that there was no evidence presented during the state court evidentiary hearing contradicting his testimony), the state trial court was certainly entitled to disbelieve Riggins' self-serving testimony, as both the Supreme Court of Arkansas and the district court noted.

"[T]he trier of fact is entitled to make the ultimate decision of whether testimony is to be believed."

See Loeblein v. Dormire, 229 F.3d 724, 726 (8th Cir.2000) (“[T]he trier of fact is entitled to make the ultimate decision of whether testimony is to be believed.”); cf. Cuppett v. Duckworth, 8 F.3d 1132, 1139 (7th Cir.1993) (“[W]e have repeatedly held that self-serving statements by a defendant that his conviction was constitutionally infirm are insufficient to overcome the presumption of regularity accorded state convictions.”), cert. denied, 510 U.S. 1180, 114 S.Ct. 1226, 127 L.Ed.2d 571 (1994).

"[W]e have repeatedly held that self-serving statements by a defendant that his conviction was constitutionally infirm are insufficient to overcome the presumption of regularity accorded state convictions."


Context: We note that the federal Second, Fifth, and Eighth Circuit Courts of Appeals, as well as other state courts, have found that due process is not violated when a sexual offender's probationary condition imposes a ban on viewing obscene, pornographic, sexually oriented, or sexually stimulating materials.

finding prohibition on "any pornography" inherently vague and remanded for a condition with greater specificity

See, e.g., Farrell v. Burke, 449 F.3d 470 (2d Cir.2006) (despite finding the term “pornography” susceptible to various meanings, the’ court found no due process violation' when the facts surrounding defendant’s probation ■ violation show that defendant had adequate notice of what reasonably constituted prohibited pornographic material); United States v. Phipps, 319 F.3d 177, 192-93 (5th Cir. 2003) (finding no due process violation with condition prohibiting sexually oriented or sexually stimulating material); United States v. Cabot, 325 F.3d 384, 385 (2d Cir.2003) (finding adequate notice to defendant in prohibition of “any ‘matter’ that is pornographic”); United States v. Ristine, 335 F.3d 692, 695 (8th Cir.2003) (not finding plain error when district court imposed condition prohibiting possession of pornography); Wilfong, 175 S.W.3d at 99 (finding the prohibition of “any sexually arousing materials” to be sufficiently construed in relationship with other provisions, and not unconstitutionally vague); but cf. United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir.2002) (finding prohibition on “any pornography” inherently vague and remanded for a condition with greater specificity); United States v. Loy, 237 F.3d 251, 263-65 (3d Cir.2001) (finding a condition prohibiting “all forms of pornography, including legal adult pornography,” as providing inadequate notice to defendant).

despite finding the term "pornography" susceptible to various meanings, the' court found no due process violation' when the facts surrounding defendant's probation # violation show that defendant had adequate notice of what reasonably constituted prohibited pornographic material


finding a condition prohibiting "all forms of pornography, including legal adult pornography," as providing inadequate notice to defendant


finding no due process violation with condition prohibiting sexually oriented or sexually stimulating material


finding adequate notice to defendant in prohibition of "any 'matter' that is pornographic"


not finding plain error when district court imposed condition prohibiting possession of pornography


finding the prohibition of "any sexually arousing materials" to be sufficiently construed in relationship with other provisions, and not unconstitutionally vague


Context: Therefore, as Defendant's subpoenas, seeking Plaintiffs entire employment file from his former employers, are not limited to seeking only those documents relevant to this FLSA overtime compensation action or the claims based upon an oral employment contract, they are overly broad on their face.

finding subpoenas to be overbroad because "compli anee with the subpoenas will result in defendants receiving a plethora of documents, the vast majority of which would be completely unrelated to any possible issue in this case"

See Hendricks, 275 F.R.D. at 255-56 (finding subpoenas to be overbroad because “compli anee with the subpoenas will result in defendants receiving a plethora of documents, the vast majority of which would be completely unrelated to any possible issue in this case”); Pena, slip op. at 3-4 (holding that subpoenas seeking “the complete employment file of Plaintiff including employment application, payroll records, medical records, evaluations, correspondence and all other records omitting nothing ” were overbroad and could be quashed on that basis alone) (emphasis in original); Barrington, 2007 WL 4370647, at *4 (holding that subpoenas seeking “any and all documents, files and records, reflecting or relating to the employment” of each plaintiff were “overly broad on their face”); see also Lewin v. Nackard Bottling Co., No. CV 10-8041-PCT-FJM, 2010 WL 4607402, at *1 (D.Ariz. Nov. 4, 2010) (holding subpoena of entire personnel file from former employers was overbroad); EEOC v. Vista Unified Sch. Dist., No. 07-1825-IEG(LSP), 2008 WL 4937000, at *1-2 (S.D.Cal.


holding that subpoenas seeking "any and all documents, files and records, reflecting or relating to the employment" of each plaintiff were "overly broad on their face"


Context: To the extent that Ramirez alleged Fourteenth Amendment substantive due process claims, dismissal was proper because Ramirez failed to allege facts sufficient to show an intent to punish or that the policies were unrelated to a legitimate governmental purpose.

setting forth criteria for evaluating a pretrial detainee's substantive due process claim

See Bell v. Wolfish, 441 U.S. 520, 535-36, 538, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (setting forth criteria for evaluating a pretrial detainee’s substantive due process claim); see also Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 629 F.3d 1135, 1137 n. 3 (9th Cir.2011) (en bahc) (a pretrial detainee’s Eighth Amendment claim is “properly recharacterized ... as a substantive due process claim under the Fourteenth Amendment”).

a pretrial detainee's Eighth Amendment claim is "properly recharacterized ... as a substantive due process claim under the Fourteenth Amendment"


Context: It is, as indicated, certainly arguable that these varying ascriptions of the language used and meaning intended by the defendants are insufficient to enable a jury reasonably to find, as Stone had the burden to prove, that defendants misrepresented to him their power to expel him summarily.

"Neither plaintiff's rhetoric nor his imagination can make undisputed facts into disputed ones or raise a genuine issue with respect thereto."

See Anderson, 477 U.S. at 252, 106 S.Ct. at 2512 (“The mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient [to survive a properly supported motion for summary judgment].”); see also Schoonfield v. Mayor of Baltimore, 399 F.Supp. 1068, 1078 (D.Md.1975) (“Neither plaintiff’s rhetoric nor his imagination can make undisputed facts into disputed ones or raise a genuine issue with respect thereto.”), aff'd, 544 F.2d 515 (4th Cir.1976).

"The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient [to survive a properly supported motion for summary judgment]."


Context: This circuit has consistently held that in order for SS 2D1.1(b)(1) to apply, the government must prove by a preponderance of the evidence that a dangerous weapon was present when the crimes ioere committed, and that it was not clearly improbable that the weapon had some nexus with the criminal activity.

holding enhancement not appropriate because firearms were seized from defendant's home thirty-seven days after last known drug sale occurred

See United States v. Shields, 44 F.3d 673, 674 (8th Cir.1995) (holding enhancement not appropriate because firearms were seized from defendant’s home thirty-seven days after last known drug sale occurred).

See also United States v. Bost, 968 F.2d 729, 731-33 (8th Cir.1992) (holding enhancement not appropriate because of two and one-half month lapse between the criminal activity and the discovery of the weapons, and no evidence that weapons were present when defendant committed charged offense).


Context: The resolution of Defendant Debtors' trademark infringement claim will require significant consideration of non-Title 11 federal law, satisfying SS 157(d). If left with the bankruptcy court, the complaint's trademark infringement claim will require that court to determine the validity and scope of alleged marks under the Lanham Act. (Doc. 13 at 4.) Resolution of this'claim will thus require significant consideration, interpretation, and application of the Lan-ham Act.

observing, in dicta, that a Lanham Act claim and dispute over trademark's abandonment "would likely be subject to mandatory withdraw of the reference" under SS 157(d

See In re Petition of Wuthrich, 337 B.R. 262, 268 (Bankr.S.D.N.Y.2006) (observing, in dicta, that a Lanham Act claim and dispute over trademark’s abandonment “would likely be subject to mandatory withdraw of the reference” under § 157(d)); In re McCrory Corp., 160 B.R. 502, 505 (S.D.N.Y.1993) (holding that § 157(d) required withdrawing reference where bankruptcy court faced Lanham Act claim, partly involving the issue of “secondary meaning,” because “[interpreting Lanham Act provisions to a given set of facts is, generally, neither simple nor straightforward”); Burger King Corp. v. B-K of Kansas, Inc., 64 B.R. 728, 731 (D.Kan.1986) (holding that trademark infringement claim based on unauthorized use of mark entailed material and substan tial consideration of non-Title 11 law); see also Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144, 152-53 (4th Cir.2012) (laying out a multi-part test to establish trademark infringement claim under the Lanham Act and articulating “at least nine factors” relevant to one part of that test); cf. In re Singer Co., N.V., No. 01 CIV. 0165, 2002 WL 243779, at *3 (S.D.N.Y. Feb. 20, 2002) (holding that “whether an accused product infringes a patent requires significant and material consideration of patent law” and thus withdrawal of reference was mandatory).

laying out a multi-part test to establish trademark infringement claim under the Lanham Act and articulating "at least nine factors" relevant to one part of that test


holding that "whether an accused product infringes a patent requires significant and material consideration of patent law" and thus withdrawal of reference was mandatory


holding that trademark infringement claim based on unauthorized use of mark entailed material and substan tial consideration of non-Title 11 law


Context: Granting qualified immunity in such instances would thwart SS 1983's purpose of preventing the abuse of official authority. Indeed, one of the primary concerns of those common law courts that refused to recognize cooperation with law enforcement as a defense in false arrest actions was that private defendants should not be shielded from liability for their assistance in patent abuses of police authority.

'When [the officer's] general power is known, his call will justify the citizen in yielding obedience, unless [the private citizen] has notice of the want of authority in the particular case in which assistance is required." (emphasis added

But see Watson, 3 So. at 441 (‘When [the officer’s] general power is known, his call will justify the citizen in yielding obedience, unless [the private citizen] has notice of the want of authority in the particular case in which assistance is required.” (emphasis added)); Restatement (Second) of Torts § 139 cmt. d (1965) (stating that “the [private] actor is privileged to rely upon the officer’s request and assist him unless the facts are such that the actor knows or is convinced beyond a reasonable doubt that the officer’s suspicion is unreasonable”).

"Suppose the officer in this case had proceeded, without necessity or provocation, to beat and wound the plaintiff or his family, it is very clear that these two defendants would not be justified in aiding him in such wanton abuse."

See, e.g., Oystead v. Shed, 12 Mass.-, 1815 WL 992, at *5 (“Suppose the officer in this case had proceeded, without necessity or provocation, to beat and wound the plaintiff or his family, it is very clear that these two defendants would not be justified in aiding him in such wanton abuse.”).


Context: The Supreme Court has held that the decision to deviate from the general rule is a matter "left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases." Moreover, the Supreme Court has long recognized that we should not decide constitutional questions when their resolution is unnecessary to the outcome of the case.

noting that "where possible, a court should rule on a narrow ground in order to avoid a constitutional question."

See also Bejjani v. INS, 271 F.3d 670, 687 (2002) (noting that “where possible, a court should rule on a narrow ground in order to avoid a constitutional question.”)

noting the "custom of avoiding decision of constitutional issues unnecessary to the decision of the case before us."

Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) (noting the “custom of avoiding decision of constitutional issues unnecessary to the decision of the case before us.”).


Context: P 5 An easement is a right that one party has to use the land of another for a specific purpose. However, a party may not acquire a prescriptive easement over a public highway.

See Cracchiolo v. State, 6 Ariz.App. 597, 600, 435 P.2d 726, 729 (1967) (generally no easement can be acquired over property owned by state, particularly if held for public use); Calhoun v. Moore, 69 Ariz. 402, 405, 214 P.2d 799, 801 (1950) (no adverse possession of state land); Edwards v. Sheets, 66 Ariz. 213, 217-18, 185 P.2d 1001, 1003-04 (1947) (same); see also Spaulding, 218 Ariz. 196, ¶ 24, 181 P.3d at 250 (we apply principles relating to adverse possession and prescriptive easements interchangeably).


Context: However, he never discussed the claims themselves. Given this cursory treatment, we cannot consider the claims as part of this appeal.

See Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) ("where an argument is given only cursory statement in the argument portion of a brief, the point will not be considered on appeal"); see also Nenana City School District v. Coghill, 898 P.2d 929, 934 (Alaska 1995) (issue on appeal from administrative agency waived or abandoned when inadequately briefed before superior court).


Context: Moreover, as we have shown, Lopez ultimately was not prejudiced. Thus exercise of the court's supervisory powers to dismiss the indictment is not warranted, even if we could certify Lopez's request to file a successive habeas petition, and even assuming the district court could invoke such powers which are "not typically considered to be an independent basis for post-conviction review."

See United States v. Ross, 372 F.3d 1097, 1107, 1110 (9th Cir.2004) (“Because no government misconduct prejudiced [defendant], dismissal of the indictment is not warranted.”); see also United States v. Owen, 580 F.2d 365, 367 (9th Cir.1978) (concluding district court did not err in denying motion to dismiss the indictment where defendant showed no prejudice).

"Because no government misconduct prejudiced [defendant], dismissal of the indictment is not warranted."


Context: . While not at issue in this case, mortgages frequently encumber mineral rights and the like. Under Connecticut law, such rights are clearly an integral part of the fee ownership of the land, until and unless they are severed from the surface estate.

a security interest in oil, gas and mineral rights did not remove the mortgage from the protection of SS 1322(b

See Miller v. State of Connecticut, 121 Conn. 43, 47, 183 A. 17 (1936) (the owner of land may convey the surface or soil in fee and reserve an estate in minerals or a right to mine them; may convey a fee estate in minerals only; or may grant or lease the right to'mine minerals while retaining the fee in minerals); City of New Haven v. Hotchkiss, 77 Conn. 168, 173, 58 A. 753 (1904) (the owner of the fee may reserve mining rights from a conveyance of the fee, in which event the fee to minerals is conveyed, and the grantor retains only the privilege to enter on the land and remove minerals which become the grantor’s property once removed); Hartford & Salisbury Ore Co. v. Miller, 41 Conn. 112, 129 (1874) ("Mineral and ore rights, when severed from the land and owned by tenants in common, are real estate....”); cf. Hernandez v. Union Nat'l Bank of Arkansas (In re Hernandez), 149 B.R. 441, 445 (Bankr.E.D.Tex.1993) (a security interest in oil, gas and mineral rights did not remove the mortgage from the protection of § 1322(b)(2)).

the owner of the fee may reserve mining rights from a conveyance of the fee, in which event the fee to minerals is conveyed, and the grantor retains only the privilege to enter on the land and remove minerals which become the grantor's property once removed


"Mineral and ore rights, when severed from the land and owned by tenants in common, are real estate...."


Context: See generally Compl.; Pis.' Mot. Although the court may award damages based solely on an estimate, it cannot do so in this case because it lacks the necessary information to verify the plaintiffs' claim for unpaid contributions.

approving the plaintiffs' calculation of damages as reasonable because the plaintiffs estimated the unpaid contributions due each month based on an average of the three previous months for which reports were submitted

See Combs, 105 F.R.D. at 474 (stating that if monetary damages are based on an estimate, the court must conduct a factual evaluation before entering default judgment); cf. Int’l Painters & Allied Trades Indus. Pension Fund v. LaSalle Glass & Mirror Co., 267 F.R.D. 430, 434 (D.D.C.2010) (approving the plaintiffs’ calculation of damages as reasonable because the plaintiffs estimated the unpaid contributions due each month based on an average of the three previous months for which reports were submitted).


Context: Thus, the touchstone of the relation back doctrine is fairness; does the substituted or additional party have fair notice of the cause of action, within the prescribed statutory period, such that the party's rights will not be prejudiced? In construing this rule, as with all rules of procedure, we are governed by the "general philosophy of the pleading rules": the rules should be liberally construed to insure that no plaintiff is deprived of his day in court solely because of the intricacies and technical limitations of pleading. Rather, our policy remains that decisions should be rendered on the merits of the case.

the "principal function of procedural rules should be to serve as useful guides to help, not hinder, persons who have a legal right to bring their problems before the courts"

See id. at 15-146; Merrill v. Faltin, 430 P.2d 913, 915 (Alaska 1967) (“the purpose of pleading under our civil rules [is] to facilitate a proper decision on the merits of the controversy”); see also Alaska R.Civ.P. 1 (“These rules shall be construed to secure the just, speedy and inexpensive determination of every action and proceeding.”); Order Adopting Revised Rules of the Supreme Court of the United States, comments of Justice Black, 346 U.S. 945, 946 (1954) (the “principal function of procedural rules should be to serve as useful guides to help, not hinder, persons who have a legal right to bring their problems before the courts”).

"the purpose of pleading under our civil rules [is] to facilitate a proper decision on the merits of the controversy"


Context: Where, as here, the evidence points to no clear conclusion on appellant's alleged participation, we will not infer it. Rather, the case must be remanded to allow the trial judge to make appropriate findings that are susceptible to appellate review should the appellant again seek review in this court.

remanding case for district court to determine applicability of sentencing enhancement because "on the record before us we cannot conclude with confidence that it employed the correct legal standard in applying the ... enhancement"

See McCoy, 242 F.3d at 410 (remanding case for district court to determine applicability of sentencing enhancement because “on the record before us we cannot conclude with confidence that it employed the correct legal standard in applying the ... enhancement”); cf. United States v. Hutchinson, 268 F.3d 1117, 1118 (D.C.Cir.2001) (remanding case for further factfinding, because the trial judge had failed to make findings of fact essential to decide the issue on review).


Context: In fact, we determine this claim to be nothing more than an attempt to re-litigate the issue of the existence of exculpatory evidence under the guise of a new claim. This issue is not available for re-litigation.

Cf. Schiro v. State, 533 N.E.2d 1201, 1205 (Ind.1989); Lane v. State, 521 N.E.2d 947, 949 (Ind.1988) (both of which hold that petitioner's allegation of ineffective assistance of counsel is an attempt to circumvent post-conviction rules in order to present issues which have been waived).

"the principle of res judi-cata prevents the repetitious litigation of that which is essentially the same dispute."

See Yerden v. State, 682 N.E.2d 1283, 1286 (Ind.1997); Scott v. Scott, 668 N.E.2d 691, 699 (Ind.Ct.App.1996) (“the principle of res judi-cata prevents the repetitious litigation of that which is essentially the same dispute.").


Context: We agree with Boudreaux's assessment that courts have routinely applied the qualified immunity defense to actions seek ing damages against public officials performing discretionary functions.

penalties are "intended to punish culpable individuals," not "to extract compensation or restore the status quo"

See Gabelli v. SEC, 568 U.S. -, 133 S.Ct. 1216, 1223, 185 L.Ed.2d 297 (2013) (“In a civil penalty action, the Government is not only a different kind of plaintiff, it seeks a different kind of relief,” namely “penalties, which go beyond compensation, are intended to punish, and label defendants wrongdoers”); see also Tull v. United States, 481 U.S. 412, 422, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987) (penalties are “intended to punish culpable individuals,” not “to extract compensation or restore the status quo”).

noting that "the defense of qualified immunity is available to public officials who are sued under the Federal Wiretap Act" in a private cause of action

See, e.g., Tapley v. Collins, 211 F.3d 1210, 1216 (11th Cir.2000) (noting that “the defense of qualified immunity is available to public officials who are sued under the Federal Wiretap Act” in a private cause of action); Gonzalez v. Lee Cnty. Hous. Auth., 161 F.3d 1290, 1299-1300 (11th Cir.1998) (concluding that Congress’ silence regarding the common law defense of qualified immunity indicated that it was available to “a public official sued in her individual capacity” by a former employee under the Fair Housing Act, 42 U.S.C. § 3601 et seq.). But the instant case is distinguishable. The SEC does not seek damages from Boudreaux in a private suit; rather this is a government enforcement action that seeks civil monetary penalties against the defendants.


concluding that Congress' silence regarding the common law defense of qualified immunity indicated that it was available to "a public official sued in her individual capacity" by a former employee under the Fair Housing Act, 42 U.S.C. SS 3601 et seq.


"In a civil penalty action, the Government is not only a different kind of plaintiff, it seeks a different kind of relief," namely "penalties, which go beyond compensation, are intended to punish, and label defendants wrongdoers"


Context: It is the treatment provisions of the statutory scheme that purportedly distinguish Minnesota's sex offender commitment law from criminal punishment. Therefore, individuals must be committed for the purpose of receiving treatment-- not as retribution for their past criminal acts, however heinous, for which they have already served and completed their sentences.

distinguishing "a dangerous sexual offender subject to civil commitment from other dangerous persons" and finding such a distinction "necessary lest civil commitment become a mechanism for retribution or general deterrence -- functions properly those of criminal law, not civil commitment"

See Crane, 534 U.S. at 412, 122 S.Ct. 867 (distinguishing “a dangerous sexual offender subject to civil commitment from other dangerous persons” and finding such a distinction “necessary lest civil commitment become a mechanism for retribution or general deterrence — functions properly those of criminal law, not civil commitment”) (internal quotations omitted); see also Hendricks, 521 U.S. at 373, 117 S.Ct. 2072 (Kennedy, J., concurring) (“If the civil system is used simply to impose punishment after the State makes an improvident plea bargain on the criminal side, then it is not performing its proper function.”).

"If the civil system is used simply to impose punishment after the State makes an improvident plea bargain on the criminal side, then it is not performing its proper function."


Context: Finally, we believe that the trial court did not abuse its discretion in issuing the anti-suit injunction because allowing Golden Rule to proceed would deprive Harper of his choice of forum. It is a fundamental principal of Texas jurisprudence that a plaintiff should be allowed to choose his or her forum. Generally, when Texas appellate courts have struck down an anti-suit injunction, a declaratory judgment action was filed in Texas before another suit was filed in a sister state.

dissolving temporary injunction where Texas action asserting defensive claims of fraudulent inducement was filed prior to bank's debt collection action in New York

See, e.g., Christensen, 719 S.W.2d at 162 (declaratory action filed in Texas prior to suit in California); Total Minatome, 851 S.W.2d at 338 (declaratory action filed in Texas prior to suit in Montana); see also Gannon, 706 S.W.2d at 305 (Payne sued and received judgment in Canadian suit; later, Payne brought a similar suit in Texas and then Gannon brought a declaratory judgment action in Canada; the supreme court dissolved the Texas trial court’s anti-suit injunction in part because the prior litigation occurred in Canada); Manufacturers Hanover, 819 S.W.2d at 609 (dissolving temporary injunction where Texas action asserting defensive claims of fraudulent inducement was filed prior to bank’s debt collection action in New York).


declaratory action filed in Texas prior to suit in Montana


Context: The factors considered by the Giovannetti court in determining whether an appellate court should undertake a harmless error analysis in situations where the government fails to raise it are: (1) the length and complexity of the record, (2) the certainty of the harmlessness finding, and (3) whether a reversal will result in protracted, costly and futile proceedings in district court. The panel's opinion, however, cautioned that when an appellate court conducts a review of the record on its own initiative, it should err on the side of the criminal defendant.

Id. at 1348. See also United States v. Rodriguez Cortes, 949 F.2d 532, 543 (1st Cir.1991) (raising harmless error analysis sua sponte where harmfulness of error was obvious); United States v. Jewel, 947 F.2d 224, 228-29 n. 5 (7th Cir.1991) (court addresses unbriefed harmless error claim based on the “certainty of harmlessness”); United States v. Benson, 941 F.2d 598, 605 (7th Cir.1991); cf. United States v. Vontsteen, 950 F.2d 1086, 1091-92 (5th Cir.1992) (appellate courts ordinarily have the discretion to address legal questions that are not timely raised).


court addresses unbriefed harmless error claim based on the "certainty of harmlessness"


Context: But even if Zambrana and Ervin had preserved their challenges as to how the district court "informed its discretion," the arguments would have failed. Because their substantive arguments in support of their motions for new trial are meritless, any purported procedural deficiency in the manner in which the district court weighed the evidence would have been harmless.

holding that district court's failure to hold evidentiary hearing to ascertain whether defendant breached plea agreement was harmless when it was clear defendant breached agreement

See United States v. Kelly, 337 F.3d 897, 901-02 (7th Cir.2003) (holding that district court’s failure to hold evidentiary hearing to ascertain whether defendant breached plea agreement was harmless when it was clear defendant breached agreement); see also Pinholster v. Ayers, 525 F.3d 742, 764 (9th Cir.2008) (holding that “any error the district court may have committed” at evidentiary hearing addressing ineffective-assistance-of-counsel claim was harmless because defendant failed to show he was prejudiced by counsel’s alleged shortcomings); Wyoming v. Livingston, 443 F.3d 1211, 1225-26 (10th Cir.2006) (stating that district court’s failure to hold evidentiary hearing on issue of removal was harmless where evidence clearly supported removal: “In our view, to reverse and remand to the district court for an evidentiary hearing (on nothing), as the State requests, would be a colossal waste of time and resources”).

holding that "any error the district court may have committed" at evidentiary hearing addressing ineffective-assistance-of-counsel claim was harmless because defendant failed to show he was prejudiced by counsel's alleged shortcomings


stating that district court's failure to hold evidentiary hearing on issue of removal was harmless where evidence clearly supported removal: "In our view, to reverse and remand to the district court for an evidentiary hearing (on nothing


Context: Several decisions have upheld vehicle searches executed pursuant to warrants containing an "all vehicle" type description.

warrant authorizing the search of "any motor vehicle adjacent to [a] motor home" did not particularly describe the place to be searched

But see Peavy v. State, 336 So.2d 199, 202 (Ala.Crim.App.1976) (warrant authorizing the search of “any motor vehicle adjacent to [a] motor home” did not particularly describe the place to be searched); State v. Barnett, 788 S.W.2d 572, 576 (Tex.Crim.App.1990) (concluded that an “all vehicles” description in a search warrant did not meet the fourth amendment particularity requirement).

upheld a warrant authorizing the search of "any and all vehicles found parked on the premises"

United States v. Alva, 885 F.2d 250, 252 (5th Cir.1989) (upheld a warrant authorizing the search of “any and all vehicles found parked on the premises”); People v. Juarez, 770 P.2d 1286, 1292-93 (Colo.1989) (upheld a warrant authorizing the search of “all vehicles ... on the property”); State v. Booream, 560 So.2d 1303, 1304 (Fla.Dist.Ct.App.1990) (upheld a warrant authorizing police to search a residence and “any and all outbuildings and vehicles thereon”); Richardson v. State, 547 So.2d 323, 324 (Fla.Dist.Ct.App.1989) (upheld a warrant authorizing the search of “all vehicles” on the premises); State v. Haugee, 402 So.2d 1216, 1218 (Fla.Dist.Ct.App.1981) (upheld a warrant authorizing the search of a residence and “any and all outbuildings and vehicles thereon”); Albert v. State, 155 Ga.App. 99, 100-101, 270 S.E.2d 220, 221-22 (1980) (upheld a warrant authorizing police to search “all automobiles” located within the curtilage of a service station where the vehicle was sufficiently connected to the premises); Green v. State, 161 Tex.Crim. 131, 132, 275 S.W.2d 110, 111 (1955) (upheld warrant authorizing search of “all automobiles” on a used car lot).


concluded that an "all vehicles" description in a search warrant did not meet the fourth amendment particularity requirement


upheld a warrant authorizing the search of "all vehicles ... on the property"


upheld a warrant authorizing police to search a residence and "any and all outbuildings and vehicles thereon"


upheld a warrant authorizing the search of "all vehicles" on the premises


upheld a warrant authorizing the search of a residence and "any and all outbuildings and vehicles thereon"


upheld a warrant authorizing police to search "all automobiles" located within the curtilage of a service station where the vehicle was sufficiently connected to the premises


upheld warrant authorizing search of "all automobiles" on a used car lot


Context: As cognizable ATS claims are based on binding international law norms, they necessarily involve claims where there is a great deal of international consensus.

noting that "it would be a rare case in which the act of state doctrine precluded suit under section 1350"

See Doe I, 395 F.3d at 959 (noting that “[b]e-cause jus cogens violations are, by definition, internationally denounced, there is a high degree of international consensus against them”); Liu Qi at 1296 (same); see also Kadic, 70 F.3d at 250 (noting that “it would be a rare case in which the act of state doctrine precluded suit under section 1350”).

noting that "[b]e-cause jus cogens violations are, by definition, internationally denounced, there is a high degree of international consensus against them"


Context: Moreover, there could be no question in 2009 that detention authorized by an immigration detainer would require more than just reasonable suspicion. Although the line between an arrest that requires probable cause and a temporary detention for interrogation which does not is not always clear, pre-2009 cases did clearly show that 48 hours of imprisonment -- which is what the de-tainer requests, see 8 C.F.R. SS 287.7(d)-- falls well on the arrest side of the divide.

whether an immigration stop of "several minutes" could be justified based solely on reasonable suspicion was a "difficult ]" question, but upholding the stop as it was "minutes rather than hours"

See, e.g., United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (emphasizing that the Supreme Court had “never approved a seizure of the person for the prolonged 90-minute period involved here” based solely on reasonable suspicion, and “cannot do so on the facts presented by this case”); Manzanares v. Higdon, 575 F.3d 1135, 1148 (10th Cir.2009) (explaining that it was unable to find any case in any circuit upholding a detention of longer than 90 minutes based on reasonable suspicion); see also Au Yi Lau v. Immigration & Naturalization Serv., 445 F.2d 217, 222 (DÍC.Cir.1971) (whether an immigration stop of “several minutes” could be justified based solely on reasonable suspicion was a “difficult ]” question, but upholding the stop as it was “minutes rather than hours”).

emphasizing that the Supreme Court had "never approved a seizure of the person for the prolonged 90-minute period involved here" based solely on reasonable suspicion, and "cannot do so on the facts presented by this case"


explaining that it was unable to find any case in any circuit upholding a detention of longer than 90 minutes based on reasonable suspicion


Context: Thus, the majority has given priority over all other considerations to an officer's perception of personal safety, as Judge Ferren points out in his separate opinion, in a context where the officer had "no discernible basis whatsoever ... for seizing any passenger of the car."

"The central inquiry in every Terry stop controversy is whether, given the totality of the circumstances at the time of the seizure, the police officer could reasonably believe that criminal activity was afoot"

Post at 110. But, in Terry, supra, the Court specifically rejected “inarticulate hunches” and “simple good faith” of the officer as sufficient bases for “intrusion upon the constitutionally protected interests of the private citizen,” observing that “[i]f subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the police” (quoting Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 229, 13 L.Ed.2d 142 (1964)). 392 U.S. at 21-22, 88 S.Ct. at 1879-80; see Duhart v. United States, 589 A.2d 895, 897 (D.C.1991) (“The central inquiry in every Terry stop controversy is whether, given the totality of the circumstances at the time of the seizure, the police officer could reasonably believe that criminal activity was afoot”) citing Terry, supra, 392 U.S. at 30, 88 S.Ct. at 1884. Under the en banc majority's new analysis, for certain citizens in certain parts of the District of Columbia, associational and locational taints will suffice; protection under the Fourth Amendment will be at the police officer’s discretion.

But see Smith v. United States, 558 A.2d 312 (D.C.1989) (en banc) (rejecting associational and locational taints as sufficient justification for a Terry stop).


Context: Consistent with Singleton, there is a significant body of cases from the Arizona Supreme Court leading to the conclusion that almost any error falls within Article 6, Section 27 and therefore must be analyzed for prejudice to see whether substantial justice has been done.

noting that "most trial error, and even most constitutional error, is reviewed for harmless error" and that "the Arizona Constitution and the Arizona harmless error statute obligate us to review trial error in criminal cases under a harmless error standard"

Hickman, 205 Ariz. at 198, ¶ 28, 68 P.3d at 424 (noting that “most trial error, and even most constitutional error, is reviewed for harmless error” and that “the Arizona Constitution and the Arizona harmless error statute obligate us to review trial error in criminal cases under a harmless error standard”); see e.g., State v. Diaz, 110 Ariz. 32, 35-36, 514 P.2d 1028, 1031-32 (1973) (applying Arizona’s constitutional prejudice test and holding that the trial judge’s comment on the evidence in violation of Article 6, Section 27 was not prejudicial, requiring reversal); Blackburn v. State, 31 Ariz. 427, 450, 254 P. 467, 475 (1927) (finding the fact that the defendant was absent from a portion of trial without having waived his right to be present “did not constitute reversible error unless his rights were prejudiced thereby,” and holding that notwithstanding the “error,” “there [was] nothing from which prejudice [could] be inferred”). But see State v. Brooks, 103 Ariz. 472, 445 P.2d 831 (1968) (finding error to be prejudicial and thus reversible under Article 6, Section 27, of the Arizona Constitution, when the trial court gave an instruction on “lying in wait” and there was no factual evidence supporting the instruction).

applying Arizona's constitutional prejudice test and holding that the trial judge's comment on the evidence in violation of Article 6, Section 27 was not prejudicial, requiring reversal


finding error to be prejudicial and thus reversible under Article 6, Section 27, of the Arizona Constitution, when the trial court gave an instruction on "lying in wait" and there was no factual evidence supporting the instruction


Context: In a similar context, the Ninth Circuit has found the reference to the polygraph test of another suspect to constitute harmless error.

But see State v. Moss, 180 W.Va. 363, 376 S.E.2d 569 (1988) (holding that admission of testimony that State had dismissed indictment against earlier suspect because he successfully passed polygraph was reversible error when prosecutor repeatedly referred to polygraph on direct and in summation).

finding that district court's refusal to strike references to polygraph examination was not prejudicial because it did not materially affect verdict

See United States v. Candoli, 870 F.2d 496, 505 (9th Cir.1989) (finding that district court’s refusal to strike references to polygraph examination was not prejudicial because it did not materially affect verdict); United States v. Hall, 805 F.2d 1410, 1417 (10th Cir.1986) (testimony that defendant had failed two polygraphs submitted to explain police’s failure to conduct more complete investigation).


testimony that defendant had failed two polygraphs submitted to explain police's failure to conduct more complete investigation


Context: The district court properly granted summary judgment on Weldon's excessive force claim because it would not have been clear to every reasonable officer that the conduct violated a clearly established right.

See Sjurset v. Button, 810 F.3d 609, 614 (9th Cir. 2015) (police officer entitled to qualified immunity unless the conduct at issue violated a clearly established constitutional right); see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001) (conclusory allega tions unsupported by factual data are insufficient to defeat a summary judgment motion).


Context: This is particularly so given that the motion was served during the end-of-year period when many people are occupied with holidays, vacations, and family events and little business is transacted. On these facts, the minimal notice belatedly supplied by way of the motion to transfer did not give the plaintiffs a reasonable opportunity to take appropriate action before the deadline for objecting to dischargeability passed and before Smith was discharged. See Mfrs.

Hanover v. Dewalt (In re Dewalt), 961 F.2d 848, 851 (9th Cir.1992) (in most cases, at least thirty days’ notice to creditor is necessary and sufficient to satisfy § 523(a)(3)(B); notice supplied seven days prior to bar date is insufficient); Sophir Co. v. Heiney (In re Heiney), 194 B.R. 898, 902-03 (D.Colo.1996) (notice received eighteen days prior to bar date insufficient); In re Walker, 149 B.R. 511, 515-17 (Bankr.N.D.Ill.1992) (knowledge of bankruptcy acquired by unrepresented creditor twenty days prior to bar date insufficient); cf. Muse v. Muse (In re Muse), 289 B.R. 619, 623-24 (Bankr.W.D.Pa.2003) (notice provided seventy-seven days prior to deadline for nondischargeability complaint sufficient); Herman v. Bateman (In re Bateman), 254 B.R. 866, 874-75 (Bankr.D.Md.2000) (notice received twenty-six days pri- or to bar date sufficient); Marino, 195 B.R. at 895-97 (two months’ notice was adequate); but see also Grossie v. Sam (In re Sam), 894 F.2d 778, 781-82 (5th Cir.1990) (eighteen days’ notice sufficient).

in most cases, at least thirty days' notice to creditor is necessary and sufficient to satisfy SS 523(a


notice received twenty-six days pri- or to bar date sufficient


knowledge of bankruptcy acquired by unrepresented creditor twenty days prior to bar date insufficient


Context: Regardless of whether these allegations constitute motive, the other indicators of scienter are, in this court's view, sufficient to withstand the German Defendants' motion to dismiss. Plaintiffs' allegations go beyond mere accounting irregularities to assert systemic failures resulting from unsound credit policies, which ultimately led to Spiegel's bankruptcy. "To the outsider looking in, it is surely strongly inferential that every officer or director of [Spiegel] either had the knowledge of such deep financial difficulties or, if not, that his failure to have such knowledge equated to reckless disregard."

denying motion to dismiss allegations against senior officers and directors accused of failing to disclose the "basic deterioration of LINC's corporate health"

See Dardick, 149 F.Supp.2d at 988-89 and n. 2 (denying motion to dismiss allegations against senior officers and directors accused of failing to disclose the “basic deterioration of LINC’s corporate health”).

"[i]t is entirely clear ... that the PSLRA abolishes the use of the group pleading doctrine to allege defendant's scienter"

But see Tel-labs, 262 F.Supp.2d at 946 n. 7 (“[i]t is entirely clear ... that the PSLRA abolishes the use of the group pleading doctrine to allege defendant’s scienter”); Chu II, 100 F.Supp.2d at 837 (“pleading scienter based exclusively on a defendant’s corporate position is insufficient to survive a motion to dismiss”).


"pleading scienter based exclusively on a defendant's corporate position is insufficient to survive a motion to dismiss"


Context: Purging of personnel records is necessary to "preclude[ ] further retaliatory conduct by preventing any reliance on discriminatory evaluations and records."

"By refusing to expunge discriminatory or retaliatory discipline from a successful plaintiffs personnel file, a court may force the plaintiff to bear the brunt of h[er] employer's unlawful conduct for the rest of h[er] working career, which certainly contravenes the goal of making a plaintiff whole through equitable remedies."

McIntosh v. Irving Trust Co., 873 F.Supp. 872, 880 (S.D.N.Y.1995) (After jury verdict finding that plaintiff was unlawfully terminated in retaliation for his complaints of discrimination, ordering defendant to “remove from its personnel files and any all reprimands, evaluations and other items of [discriminatory and retaliatory nature] dated from [the date upon which the plaintiff complained of discrimination].”); see also Bruso v. United Airlines, Inc., 239 F.3d 848, 863, 864 (7th Cir., 2001) (“By refusing to expunge discriminatory or retaliatory discipline from a successful plaintiffs personnel file, a court may force the plaintiff to bear the brunt of h[er] employer’s unlawful conduct for the rest of h[er] working career, which certainly contravenes the goal of making a plaintiff whole through equitable remedies.”).

After jury verdict finding that plaintiff was unlawfully terminated in retaliation for his complaints of discrimination, ordering defendant to "remove from its personnel files and any all reprimands, evaluations and other items of [discriminatory and retaliatory nature] dated from [the date upon which the plaintiff complained of discrimination]."


Context: Under the CSA, marijuana is defined to include all Cannabis sativa L. plants, regardless of THC concentration. We also noted that "[t]he language of the CSA unambiguously bans the growing of marijuana, regardless of its use," id. at 1072, and we concluded that "[bjecause the CSA does not distinguish between marijuana and hemp in its regulation, and because farming hemp requires growing the entire marijuana plant which at some point contains psychoactive levels of THC, the CSA regulates the farming of hemp," id. at 1073. Considering the legislative history of the CSA, we found "no evidence that Congress intended otherwise" than to ban the growth of all varieties of the Cannabis sativa L. plant absent compliance with the registration requirements of the CSA.

Id. at 1072; see also N.H. Hemp Council, 203 F.3d at 6-8 (concluding that cannabis cultivated for industrial use and possessing a low THC concentration is nevertheless marijuana under the CSA and is subject to regulation by the DEA); cf. United States v. Curtis, 965 F.2d 610, 616 (8th Cir.1992) (observing that male marijuana plants, which may have lower THC concentrations than female plants, are still marijuana plants for sentencing purposes).


Context: Persecution "does not encompass all treatment that our society regards as unfair, unjust or even unlawful or unconstitutional.... Persecution must be extreme conduct to qualify for ... protection." Temporary detainment, some physical abuse not requiring medical attention, and being fired from one's job -- as Petitioner has alleged -- does not rise to this level of "extreme conduct" required to show persecution.

See Tesfamichael v. Gonzales, 469 F.3d 109, 114 (5th Cir.2006) (asylum applicant could not show that arrest and one-month detention rose to level of past persecution); Abdel-Masieh v. I.N.S., 73 F.3d 579, 584 (5th Cir.1996) (asylum applicant could not show that two arrests, two detentions, and beatings not characterized as severe rose to level of past persecution); see also Chen v. Ashcroft, 381 F.3d 221, 233 (3d Cir.2004) (beatings that did not require medical treat ment not considered past persecution in asylum case).


asylum applicant could not show that two arrests, two detentions, and beatings not characterized as severe rose to level of past persecution


Context: The transfers could still have been made for "value," however, if the debtors received "property" in exchange for the transfers. The consideration for the transfers was the use of the defendants' money over a period of time. The use of money may be "property" in some contexts.

for federal gift tax purposes the use of money "is itself a legally protectible property interest"

See, e.g., Dickman v. Commissioner, 465 U.S. 330, 336, 104 S.Ct. 1086, 1090, 79 L.Ed.2d 343 (1984) (for federal gift tax purposes the use of money “is itself a legally protectible property interest”).

See also Larrimer v. Feeney, 411 Pa. 604, 192 A.2d 351, 354 (1963) (implying that transfers were not fraudulent to the extent they did not exceed the legal rate of interest). We conclude, however, that the use of investors’ money to perpetuate a Ponzi scheme is not the type of “property” and hence “value” Congress had in mind when it passed section 548(a)(2).


Context: Additionally, after Lugo requested identification and bus and claim tickets, the items were passed to Rote and another officer. Tr. 360-61.

in finding consent to search vehicle voluntary, court noted that officer was not in possession of driver's belongings

See United States v. Perez, 37 F.3d 510, 515 (9th Cir.1994) (in finding consent to search vehicle voluntary, court noted that officer was not in possession of driver’s belongings); see also Chan-Jimenez, 125 F.3d at 1326 (seizure when officer takes possession of identification papers longer than necessary).


Context: At the outset, the Court finds that this lawsuit is governed by federal rather than state law because the Declaratory Judgment Act addresses procedural as opposed to substantive rights.

See Haagen-Dazs Shoppe Co. v. Born, 897 F.Supp. 122, 126 & n. 2 (S.D.N.Y.1995) (holding that the Declaratory Judgment Act, as opposed to state law, governs cases removed on the basis of diversity jurisdiction under an Erie analysis); De Feo v. Procter & Gamble Co., 831 F.Supp. 776, 779 (N.D.Cal.1993) (same); see also Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 878-79, 94 L.Ed. 1194 (1950) (recognizing that the Declaratory Judgment Act is procedural in nature and not an extension of federal court jurisdiction).


Context: Gibson next argues the. district court erred by applying a five-level enhancement under. SS 4B1.5(b). He contends the two separate occasions the guideline requires to constitute a "pattern of activity" should not include activity involved in his instant offense of conviction for sex trafficking, i.e., the multiple occasions he posted ads on Backpage.com, the multiple occasions the minor engaged in' prohibited sexual conduct at his direction, his production of a sexually explicit video of the minor, or his own sexual contact with the victim. This argument is foreclosed by our precedent.

"[O]ne panel of this Court is not at liberty to overrule an -opinion filed by. another panel"

See United States v. Rojas, 520 F.3d 876, 883 (8th Cir. 2008) (“We now hold that subsection (b) [of § 4B1.5] may apply where there is no prior sex offense conviction and the only ‘pattern of ... .conduct’ is conduct involved in the present offense of conviction”); see also United States v. Wells, 648 F.3d 671, 675 (8th Cir. 2011) (“[O]ne panel of this Court is not at liberty to overrule an -opinion filed by. another panel”).

"We now hold that subsection (b) [of SS 4B1.5] may apply where there is no prior sex offense conviction and the only 'pattern of ... .conduct' is conduct involved in the present offense of conviction"


Context: DIRECTV argues that "[b]ecause Plaintiffs are not members of the general public, Plaintiffs .are not entitled to [section] 17200 protections for fraudulent actions." DIRECTV's Mem. of P's & A's in Support of its Reply to Motion No. 2 at 21:12-13. The Court agrees.

"it is "necessary under the 'fraudulent' prong [of the UCL] to show deception to some members of the public, or harm to the public interest, and not merely to the direct competitor or other non-consumer party to a contract." "

See South Bay Chevrolet v. GMAC, 72 Cal.App.4th 861, 888, 85 Cal.Rptr.2d 301 (1999) (“ ‘Fraudulent,’ as used in the statute, does not refer to the common law tort of fraud but only requires a showing members of the public are likely to be deceived.”) (internal quotations omitted); see also Watson Labs., 178 F.Supp.2d at 1121 (“it is “necessary under the ‘fraudulent’ prong [of the UCL] to show deception to some members of the public, or harm to the public interest, and not merely to the direct competitor or other non-consumer party to a contract.” ”).

" 'Fraudulent,' as used in the statute, does not refer to the common law tort of fraud but only requires a showing members of the public are likely to be deceived."


Context: The letter sent to AG merely stated that there was no record of a previous NOD and that the appeal period for the 1983 decision had expired; it also provided instructions for AG to reopen his claim. The statute, however, states that the VA must provide to a claimant notice of any decision affecting the provision of benefits to a claimant, and that "[t]he notice shall include an explanation of the procedure for obtaining review of the decision." 38 U.S.C. SS 5104(a). The right to notice was also promulgated in the VA's governing regulations. 38 C.F.R. SS 3.103(b). According to the rule set out by the Veterans Court, the consequence of a failure to notify in accordance with the regulation renders the RO's determination non-final.

failure to notify claimant that he was denied service connection for a particular condition constituted a procedural error under 38 C.F.R. SSSS 3.103(e

Best v. Brown, 10 Vet.App. at 325 (failure to notify claimant that he was denied service connection for a particular condition constituted a procedural error under 38 C.F.R. §§ 3.103(e) and 3.104(a), rendered the RO’s decision not final, and deprived the Veterans Court of jurisdiction over the claim); see also Juarez v. Peake, 21 Vet.App. 537, 543 (2008) (finding that RO decision was final where it “provided notice that compensation ... was being denied and gave [appellant] the opportunity to appeal and present any and all arguments of error, including the argument that its determination on the finality of [an earlier] RO decision was flawed”).

finding that RO decision was final where it "provided notice that compensation ... was being denied and gave [appellant] the opportunity to appeal and present any and all arguments of error, including the argument that its determination on the finality of [an earlier] RO decision was flawed"


Context: Our jurisdiction, like that of all federal courts other than the Supreme Court, is established solely by Congress, not the Court. As my colleagues seem to admit, the requirement in our Court for a case or controversy is an important prudential rule wisely adopted by the Court in its formative year, but it is not in our jurisdictional statute.

adopting "as a matter of policy the jurisdictional' restrictions of the Article III case or controversy rubric"

See Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990) (adopting “as a matter of policy the jurisdictional' restrictions of the Article III case or controversy rubric”); see also Padgett v. Nicholson, 473 F.3d 1364, 1370 (Fed.Cir.2007) (noting that this Court is “not formally bound by” the case or controversy requirement but “nevertheless, adheres to it”). Accordingly, although application of the case or controversy requirement is not discretionary absent Mokal being overturned by the en banc Court or statute, Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992), dismissal under this important prudential rule nevertheless is not a dismissal for lack of jurisdiction. 49 U.S. at 449; cf. Henderson v. Shinseki, - U.S. -, -, 131 S.Ct. 1197, 1206, 179 L.Ed.2d 159 (2011) (finding that 38 U.S.C. § 7266(a) was an “important procedural rule” but not jurisdictional); see also Breedlove v. Shinseki, 24 Vet.App. 7, 17 n. 5 (2010) (per curiam order) (citing Zevalkink v. Brown, 102 F.3d 1236, 1244 (Fed.Cir.1996) and noting that the Court does not lack jurisdiction upon the death of the claimant).

noting that this Court is "not formally bound by" the case or controversy requirement but "nevertheless, adheres to it"


finding that 38 U.S.C. SS 7266(a) was an "important procedural rule" but not jurisdictional


Context: Despite plaintiffs assertion that her performance was satisfactory, "[i]t is the manager's perception of the employee's performance that is relevant, not plaintiffs subjective evaluation of [her] own relative performance."

Furr v. Seagate Technology, Inc., 82 F.3d 980, 987 (10th Cir.1996) (granting JMOL in favor of defendant because ADEA plaintiff failed to show reduction in force was pretextual); see also Fallis v. Kerr-McGee Corp., 944 F.2d 743, 747 (10th Cir.1991)(“plaintiffs general dispute concerning [] job performance, in the absence of any other evidence of age discrimination, does not provide a sufficient basis for a jury to infer that [defendant] terminated plaintiff on the basis of [ ] age.”). Further, the fact that the Civil Service Board and state district court upheld plaintiffs dismissal supports the validity of the evaluations.

"plaintiffs general dispute concerning [] job performance, in the absence of any other evidence of age discrimination, does not provide a sufficient basis for a jury to infer that [defendant] terminated plaintiff on the basis of [ ] age."


Context: In addition, several of our sister circuits have found expressly that the term "interstate or foreign commerce" is a single unitary concept rather than two separate bases for jurisdiction.

defendant was on notice that the pistol he possessed had travelled to Vermont via interstate commerce because the pistol was imprinted with the words "Made in West Germany"

See United States v. Alvarez, 972 F.2d 1000, 1003-04 (9th Cir.1992), cert. denied, 507 U.S. 977, 113 S.Ct. 1427, 122 L.Ed.2d 795 (1993); United States v. Young, 730 F.2d 221, 224 (5th Cir.1984); United States v. McRary, 665 F.2d 674, 678 (5th Cir. Unit B) (“The word ‘commerce’ is consistently preceded in the statute by ‘interstate or foreign’ without any hint that ‘commerce’ should have separate meanings for each.”) (footnote omitted), cert. denied, 456 U.S. 1011, 102 S.Ct. 2306, 73 L.Ed.2d 1307 (1982); cf. United States v. Carter, 981 F.2d 645, 648 (2d Cir.1992) (defendant was on notice that the pistol he possessed had travelled to Vermont via interstate commerce because the pistol was imprinted with the words “Made in West Germany”), cert. denied, 507 U.S. 1023, 113 S.Ct. 1827, 123 L.Ed.2d 456 (1993).

"The word 'commerce' is consistently preceded in the statute by 'interstate or foreign' without any hint that 'commerce' should have separate meanings for each."


Context: The Supreme Court has held that a sentencing adjustment, pursuant to SS 3582(c)(2), is not a resentencing proceeding.

providing that SS 3582(c)(2) does not authorize a resen-tencing, but instead permits a modification by giving courts the power to reduce a sentence within the narrow bounds established by the Sentencing Commission

Dillon v. United States, 560 U.S. 817, -, 130 S.Ct. 2683, 2690-91, 177 L.Ed.2d 271 (2010) (providing that § 3582(c)(2) does not authorize a resen-tencing, but instead permits a modification by giving courts the power to reduce a sentence within the narrow bounds established by the Sentencing Commission).

holding that constitutional claims are "extraneous resentencing issues" that a court cannot address during a SS 3582(c

A § 3582(c)(2) proceeding has a limited scope and purpose, is “not constitutionally compelled,” and represents a “congressional act of lenity.” Id. at -, 130 S.Ct. at 2691-92; see also United States v. Bravo, 203 F.3d 778, 781-82 (11th Cir.2000) (holding that constitutional claims are “extraneous resentencing issues” that a court cannot address during a § 3582(c)(2) proceeding, and that a defendant is entitled to raise constitutional challenges to a sentence by making a collateral attack under 28 U.S.C. § 2255). Rather, all original sentencing determinations remain unchanged, with the sole exception of the change in the guideline range that has been amended since the original sentencing.


Context: Even if late-filed tax documents, can sometimes qualify as returns, the BAPCPA definition also demands that a return satisfy "the requirements of applicable nonbankruptcy law." Both parties to this ease, and all courts to consider the issue, agree that the term "applicable nonb'ankruptcy law" incorporates the Beard test.

declining to apply Beard test because the one-day-late rule meant that late tax filings could never be returns, and therefore declining to apply any "applicable non-bankruptcy law" at all

See, e.g., In re Martin, 500 B.R. 1, 8 (D.Colo.2013) aff'd sub nom. In re Mallo, 774 F.3d 1313 (10th Cir.2014) (holding that the Beard test “constituted the ‘applicable nonbankruptcy law1 — pursuant to the first sentence of the hanging paragraph provided by the BAPCPA — for purposes of determining whether a filing is a ‘return’ under § 523(a)(l)(B)(i)”); In re Rhodes, 498 B.R. 357, 367 (Bankr.N.D.Ga.2013). (applying Beard test “to determine whether a later filed, post-assessment return is, in fact, a ‘return’ for purposes of dischargeability considerations under clause (i) of § 523(a)(1)(B)”); cf. In re Casano, 473 B.R. 504, 507 (Bankr.E.D.N.Y.2012) (declining to apply Beard test because the one-day-late rule meant that late tax filings could never be returns, and therefore declining to apply any “applicable non-bankruptcy law” at all).

holding that the Beard test "constituted the 'applicable nonbankruptcy law1 -- pursuant to the first sentence of the hanging paragraph provided by the BAPCPA -- for purposes of determining whether a filing is a 'return' under SS 523(a


applying Beard test "to determine whether a later filed, post-assessment return is, in fact, a 'return' for purposes of dischargeability considerations under clause (i


Context: . Plaintiffs have suggested that KRS 454.210(2)(a) 1.-2 may establish personal jurisdiction over Defendants. Their reasoning apparently is that operating or deriving revenue through independent distributors can establish minimum contacts with the forum.

See Payne v. Kristofferson, 631 F.Supp. 39, 43 (N.D.Ga.1985) (nonresident's licensing arrangement with national distributor of allegedly infringing song books sufficient to establish minimum contacts with forum); See also Edy Clover Productions, Inc. v. National Broadcasting Co., 572 F.2d 119, 120-21 (3rd Cir.1978) (nonresident programmer could anticipate that allegedly infringing game show might be broadcast by distributor in forum). However, even if such arrangements constituted “transacting any business” or "contracting to supply goods or services” in Kentucky under the long-arm statute, Plaintiffs tort claims still would not "arise from” these contacts.


Context: Here, both of the claims at issue-- for violations of Plaintiffs Fourth Amendment rights to be free from (1) arrest without probable cause, and (2) malicious prosecution--turn on whether Defendants had probable cause.

qualified immunity analysis turned on "whether extant clearly established law [at the time of the events at issue] would have placed a reasonable, similarly situated police officer on notice that no probable cause existed"

See Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995) (“A police officer may arrest a person without a warrant if he has probable cause to believe that person committed a crime.”); Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008) (to succeed on a malicious prosecution claim, a plaintiff must show that “no probable cause supported the original arrest, continued confinement, or prosecution”). Because Garcia I concluded that “Plaintiff submitted sufficient evidence to support his claim that his arrest was without probable cause,” 551 Fed.Appx. at 467, as Defendants recognize, the only remaining issue in the qualified-immunity analysis is whether, in March 2009, Defendants lacked probable cause under clearly established law to arrest and prosecute Plaintiff, see Callahan, 806 F.3d at 1027; see also Quinn, 780 F.3d at 1007 (qualified immunity analysis turned on “whether extant clearly established law [at the time of the events at issue] would have placed a reasonable, similarly situated police officer on notice that no probable cause existed”).

"A police officer may arrest a person without a warrant if he has probable cause to believe that person committed a crime."


to succeed on a malicious prosecution claim, a plaintiff must show that "no probable cause supported the original arrest, continued confinement, or prosecution"


Context: Although neither the parties nor this Court has identified any circuit court of appeals precedent on this precise issue, several bankruptcy courts have rejected Musolino's argument.

declining to extend holding in Craft, holding that under Maryland law property held in tenancy by entireties estate is validly exempt from bankruptcy creditors of one spouse under SS 522(b

See In re Great-house, 295 B.R. 562, 567-68 (Bankr.D.Md.2003) (declining to extend holding in Craft, holding that under Maryland law property held in tenancy by entireties estate is validly exempt from bankruptcy creditors of one spouse under § 522(b)(2)(B)); In re Kelly, 289 B.R. 38, 45 (Bankr.D.Del.2003) (concluding that Craft is inapplicable, holding that “[ujnder Delaware law and [§ 522(b)(2)(B) ], property held in an entireties estate is validly exempt and may not be reached by the creditors of one spouse”); see also Schlossberg v. Barney, 380 F.3d 174, 182 (4th Cir.2004) (declining to extend Craft, holding that Chapter 7 bankruptcy trustee proceeding pursuant to § 544 of the Bankruptcy Code cannot stand in shoes of the IRS in a tax collection context in order to reach property held in tenancy by the entireties exempted under § 522(b)(2)(B)); In re Ryan, 282 B.R. 742, 750 (2002) (noting that “Craft gives no indication that the reasoning therein should be extended beyond federal tax law”).

declining to extend Craft, holding that Chapter 7 bankruptcy trustee proceeding pursuant to SS 544 of the Bankruptcy Code cannot stand in shoes of the IRS in a tax collection context in order to reach property held in tenancy by the entireties exempted under SS 522(b


noting that "Craft gives no indication that the reasoning therein should be extended beyond federal tax law"


concluding that Craft is inapplicable, holding that "[ujnder Delaware law and [SS 522(b


Context: The district court properly granted summary judgment on qualified immunity grounds on the deliberate indifference claim because Patrick failed to raise a triable issue as to whether defendant, a correctional officer, informed other in mates that Patrick was a snitch or sent an inmate to attack Patrick.

See Farmer v. Brennan, 511 U.S. 825, 834-37, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (discussing deliberate indifference standard); Rodriguez v. Maricopa County Cmty. College Dist., 605 F.3d 703, 711 (9th Cir.2010) (a defendant is entitled to qualified immunity if there is no constitutional violation); see also Nilsson v. City of Mesa, 503 F.3d 947, 952 n. 2 (9th Cir.2007) (a conclusory affidavit unsupported by facts is insufficient to raise a triable issue).


Context: Under this interpretation, bankruptcy courts will continue to have some discretion over the calculations of each individual debtor's financial situation, with the result that the debtor's "projected disposable income" will end up more closely aligning with reality. This interpretation also comports with the congressional intent that above-median debtors pay the maximum they can afford and results in making workable the application of 11 U.S.C. SS 1325(b)(1)(B) for above-median debtors who have positive "disposable income," as well as for above-median debtors with negative "disposable income."

Congress must have intended "disposable income" to be something different than "projected disposable income" or it would have used the same language in both places in the statute

See Gonzalez, 388 B.R. at 304-05, 308-09 (rigid adherence to a debtor’s historical income would produce results inconsistent with the congressional purpose of BAPC-PA and inconsistent with common sense); see also Hardacre, 338 B.R. at 723 (Congress must have intended “disposable income” to be something different than “projected disposable income” or it would have used the same language in both places in the statute).

rigid adherence to a debtor's historical income would produce results inconsistent with the congressional purpose of BAPC-PA and inconsistent with common sense


Context: While the court did not discuss the debtors' chances of obtaining a successful reorganization, such a finding was encompassed by, and implicit in, the court's focus on protecting the debtors' reorganization efforts.

See Eagle-Picher, 963 F.2d at 860 (“In view of the bankruptcy court’s protection of Eagle-Picher’s [the debtor] reorganization efforts, it is implicit in its decision that it believed Eagle-Picher had some realistic possibility of successfully reorganizing under Chapter 11.”); but see Excel Innovations, 502 F.3d at 1097 (stating that it is not a high burden to show reasonable likelihood of success in reorganization, but a bankruptcy court must consider the issue before granting an injunction). The Sixth Circuit in Eagle-Picher acknowledged such an implicit finding, stating that the debtor’s bankruptcy petition had been before the court “for over a month” and the court was “thoroughly familiar” with the reorganization plan.

"In view of the bankruptcy court's protection of Eagle-Picher's [the debtor] reorganization efforts, it is implicit in its decision that it believed Eagle-Picher had some realistic possibility of successfully reorganizing under Chapter 11."


Context: Although the two paragraphs cobble together a few details, they fail to give even one date on which an alleged misrepresentation occurred. That alone dooms ABI's ability to allege fraud with particularity.

See Heinrich, 668 F.3d at 393 (finding that a plaintiff failed to allege fraud with sufficient particularity because she “d[id] not include [in her affidavit] the date she received the allegedly fraudulent email from the defendants.”); see also United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 504-05 (6th Cir. 2007) (holding that pleading was insufficient where the plaintiff failed to, among other things, set forth the dates of any fraudulent statements); United States ex rel. Hirt v. Walgreen Co., 846 F.3d 879, 881 (6th Cir. 2017) (same).

finding that a plaintiff failed to allege fraud with sufficient particularity because she "d[id] not include [in her affidavit] the date she received the allegedly fraudulent email from the defendants."


Context: See Hudson v. MCI Telecom. Plaintiff bore the initial burden of initiating an interactive process with OAS by proposing an accommodation and showing that the accommodation was objectively reasonable.

See Woodman, 132 F.3d at 1344 (initial burden is on the employee to suggest a “plausible accommodation”); see also Midland Brake, 180 F.3d at 1171 (interactive process begins by an employee expressing a desire for reassignment if no reasonable accommodation is possible in his existing job).

initial burden is on the employee to suggest a "plausible accommodation"


Context: The Naranjos assert that reasonable reliance may constitute good cause, but have failed to demonstrate that their reliance was reasonable. In our view, it is not reasonable to rely on an opposing attorney's representation or statement of the law when both attorneys have readily accessible means to read, interpret, and apply it.

See Campbell, 144 Idaho at 257-58, 159 P.3d at 894-95 (no good cause when service was late because one attorney accepted in good faith that the other attorney would remind him to serve process); Regjovich v. First Western Investments, Inc., 134 Idaho 154, 157-58, 997 P.2d 615, 618-19 (2000) (denying claim of equitable estoppel because party had readily accessible means to discover the truth, and finding no good cause on other grounds).

reliance upon the clerk's advice did not constitute good cause because clerk's office has no duty to provide step-by-step guidance

Cf. Veal v. United States, 84 Fed.Appx. 253, 255-56 (3d Cir.2004) (reliance upon the clerk’s advice did not constitute good cause because clerk’s office has no duty to provide step-by-step guidance).


denying claim of equitable estoppel because party had readily accessible means to discover the truth, and finding no good cause on other grounds


Context: Ignoring the appellate waiver, we are still left with Mr. Coates's agreement stipulating to a twenty-year sentence. In light of this plea agreement, we hold that Mr. Coates's sentencing challenges necessarily must fail because any error by the district court in setting the length of the sentence at twenty years was invited.

"[H]e has invited any error regarding the length of his sentence ... and his claims [raised] now for the first time on appeal are waived."

See United States v. Mancera-Perez, 505 F.3d 1054, 1055 (10th Cir.2007) (“[H]e has invited any error regarding the length of his sentence ... and his claims [raised] now for the first time on appeal are waived.”); see also United States v. Grillo, 431 Fed. Appx. 677, 680 (10th Cir.2011) (“[The appellant] received a sentence within the range she requested, so she has waived her argument that her sentence was substantively unreasonable.”); United States v. Perez-Cruz, 404 Fed.Appx. 255, 257 (10th Cir.2010) (holding that because, at sentencing, the appellant had asked the district court to impose the same sentence he now claims is substantively unreasonable, “the argument [he] seeks to make was waived”), cert, denied, — U.S.-, 131 S.Ct. 1831, 179 L.Ed.2d 786 (2011); United States v. Ramos-Lopez, 390 Fed. Appx. 833, 836 (10th Cir.2010) (holding that by requesting a sentence at the low end of the Guidelines, “[i]t is clear ... that [the appellant] waived any argument that he was entitled to a below-guideline sentence”); United States v. Tafolla-Zavala, 362 Fed.Appx. 895, 897 (10th Cir.2010) (“Any error as to the procedural or substantive reasonableness of the sentence was waived when counsel indicated agreement with the sentence to be imposed.”).

"[The appellant] received a sentence within the range she requested, so she has waived her argument that her sentence was substantively unreasonable."


holding that because, at sentencing, the appellant had asked the district court to impose the same sentence he now claims is substantively unreasonable, "the argument [he] seeks to make was waived"


holding that by requesting a sentence at the low end of the Guidelines, "[i]t is clear ... that [the appellant] waived any argument that he was entitled to a below-guideline sentence"


"Any error as to the procedural or substantive reasonableness of the sentence was waived when counsel indicated agreement with the sentence to be imposed."


Context: Relying on our case law, Snyder argues that an infamous crime is a felony, and therefore misdemeanor battery is not an infamous crime. Contrary to the State's assertions, this argument clearly is supported by the ease law.

holding "that larceny, being a felony, is an infamous crime"

See Crum, 148 Ind. at 409, 47 N.E. at 835 (holding “that larceny, being a felony, is an infamous crime”); Taylor, 616 N.E.2d at 385 (holding that because “each of Taylor’s class D felony convictions was a felony which was punishable by imprisonment for a term of years[, e]ach was, therefore, an infamous crime” (citations omitted)); cf. Sutherlin v. Sutherlin, 27 Ind.App. 301, 61 N.E. 206, 206 (1901) (holding that manslaughter was an infamous crime under a divorce statute because it was a felony). Compare Crampton, 193 Ind. at 557,139 N.E. at 362 (“It is obvious that a ‘sentence’ exceeding six months, without any indication as to where the imprisonment is to be, is not an apt designation of an infamous crime.”), and Wilson, 642 N.E.2d at 261 (“Inasmuch as Wilson might have been imprisoned for more than one year, his offense qualifies as an infamous crime.” (citation omitted)), with 1 Burns’ Ann. Ind. Stat. § 1866 (1914) (defining “felony” as a crime punishable “with death or imprisonment in the state prison”), and Ind.Code § 35-50-2-l(b) (1993) (defining “felony conviction” as a conviction for which a “convicted person might have been imprisoned for more than one (1) year”).


"It is obvious that a 'sentence' exceeding six months, without any indication as to where the imprisonment is to be, is not an apt designation of an infamous crime."


Context: This Court interprets the state habeas appellate court's affirmance without an opinion to be a denial on the merits. Thus, Plasencia's claim is not proeedurally barred because the state court did not "clearly and expressly [state] that its judgment rests on a procedural bar."

See Johnson, 938 F.2d at 1173. Furthermore, Plasencia exhausted his state court remedies because he presented his claim to the state’s highest court in his motion for rehearing on direct appeal, and in his Rule 3.850 motion, which was affirmed per curiam by the Second District Court of Appeal. See Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir.2010) (stating to exhaust state remedies, a petitioner must have presented the issues raised in the federal habeas petition to the state’s highest court,' either on direct appeal or collateral review); see also Jenkins v. State, 385 So.2d 1356, 1359 (Fla.1980) (holding a per curiam affirmance from a Florida District Court of Appeal is not renewable by the Florida Supreme Court).

stating to exhaust state remedies, a petitioner must have presented the issues raised in the federal habeas petition to the state's highest court,' either on direct appeal or collateral review


Context: . Of particular relevance to the challenge made by Keyes here is the rule that the federal due process guarantee does not "prevent a state from prescribing a reasonable and appropriate condition precedent to the bringing of a suit of a specified kind or class so long as the basis of distinction is real and the condition imposed has reasonable relation to a legitimate object."

Jones v. Union Guano Co., 264 U.S. 171, 181, 44 S.Ct. 280, 282, 68 L.Ed. 623, 628 (1924) (upholding state statute providing that no suit for damages to crops resulting from fertilizer use may be brought except after chemical analysis showing deficiency of ingredients); see also Prendergast, 256 N.W.2d at 668 (legislature may pass law which seeks to distinguish between different types of tort actions so long as distinctions are reasonable and grounded upon real differences inherent in those actions).


Context: It plainly did not do so here. Second, the Maine Constitution commands a presumption in favor of judicial access. See M.R.S.A.

invoking similar "presumption in favor of judicial jurisdiction" to reject title insurer's exhaustion argument

Const. Art. 1, § 19; State v. Bilynsky, 942 A.2d 1234, 1236 (Me.2008); Gibson v. Nat’l Ben Franklin Ins. Co., 387 A.2d 220, 223 (Me.1978) (“In view of that provision, legislation should not be deemed to preclude an injured person from having a remedy of his own for a recognized wrong in the absence of a clear manifestation of intent to that effect.”); see also Johnson, 2008 WL 4850198, at *3 (invoking similar “presumption in favor of judicial jurisdiction” to reject title insurer’s exhaustion argument).

"In view of that provision, legislation should not be deemed to preclude an injured person from having a remedy of his own for a recognized wrong in the absence of a clear manifestation of intent to that effect."


Context: But, as Bennett points out, at least one circuit has refused to apply the procedural default rule to claims that, though not expressly raised on direct appeal, fit into the category of claims for which a state supreme court is statutorily required to review all appeals in capital cases. In Beam, the petitioner had failed on direct review to specifically appeal the trial court's application of the "continuing threat" aggravator to him. Nevertheless, the Ninth Circuit held that, because the Idaho Supreme Court was statutorily required to review Beam's capital sentence to determine if it was infected by "passion, prejudice, or any other arbitrary factor," that, court must be deemed to have implicitly ruled on the constitutionality of the trial judge's application of the "continuing threat" factor to Beam. Accordingly, the Ninth Circuit concluded, Beam had not defaulted by failing specifically to raise that claim on direct review, hence the claim could be reviewed on federal habeas.

Id. at 1307 (citing Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (Oklahoma statute requiring its supreme court to review for “fundamental error” in capital cases preserved constitutional errors for direct federal review, despite failure to raise them in state direct appeal)); cf. Nave v. Delo, 62 F.3d 1024, 1039 (8th Cir.1995) (concluding that, under Beam analysis, challenge to trial instructions not preserved because Missouri mandatory review statute did not require review of trial errors).

Oklahoma statute requiring its supreme court to review for "fundamental error" in capital cases preserved constitutional errors for direct federal review, despite failure to raise them in state direct appeal


Context: The Supreme Court has repeatedly concluded that orders denying absolute immunity are renewable on interlocutory appeal under the collateral order doctrine.

concluding that appellate jurisdiction over denial of President's claim to absolute immunity was proper

See, e.g., Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (concluding that appellate jurisdiction over denial of President’s claim to absolute immunity was proper); Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (reviewing claim of immunity under Speech or Debate Clause); see also Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir.1999) (concluding that the denial of a claim of absolute immunity raised in a 12(b)(6) motion to dismiss “is immediately appealable under the collateral order doctrine”).


Context: Because the trial court did not follow the statutory methodology when it made its custody determination, and application of that methodology on remand will require the court to make factual findings that may be dependent on the court's assessment of the parties' credibility, we decline to exercise our discretion to review the case de novo, and, instead, we vacate and remand.

declining to exercise de novo review and instead vacating and remanding the trial court's custody judgment because the trial court did not afford the statutory preference to the primary caregiver

See Olson and Olson, 218 Or App 1, 16, 178 P3d 272 (2008) (“[A] trial court’s *** award must reflect the exercise of discretion under the correct methodology, and it must lie within the range of legally permissible outcomes.”); see also Nice v. Townley, 248 Or App 616, 618, 623, 274 P3d 227 (2012) (declining to exercise de novo review and instead vacating and remanding the trial court’s custody judgment because the trial court did not afford the statutory preference to the primary caregiver).

"[A] trial court's *** award must reflect the exercise of discretion under the correct methodology, and it must lie within the range of legally permissible outcomes."


Context: Rather than showing excusable neglect, then, plaintiff has demonstrated that his lawyer either made a tactical decision not to file responsive papers or was ignorant of the procedural rules governing extensions of time in the federal courts. Thus, even accepting that plaintiff failed to file responsive papers for these reasons, plaintiff is not entitled to relief under Rule 60(b)(1).

See Cirami I, 535 F.2d at 739 (attorney's ignorance of proper procedure insufficient basis for relief under Rule 60(b)(1)); see also Nemaizer v. Baker, 793 F.2d 58, 62 (2d Cir.1986) (attorney’s failure to evaluate or understand the legal consequences of a chosen course of action insufficient ground for relief under Rule 60(b)(1)); United States v. Erdoss, 440 F.2d 1221, 1223 (2d Cir.) (illness of lawyer and lawyer’s mistake as to applicable law insufficient grounds for relief under Rule 60(b)(1)), cert. denied, 404 U.S. 849, 92 S.Ct. 83, 30 L.Ed.2d 88 (1971); United States v. Kirksey, 631 F.Supp. 165, 166-69 (S.D.N.Y.1986) (litigant’s failure to communicate effectively with counsel, and attorney’s tactical decision not to file opposing motions, not grounds for relief under Rule 60(b)(1)).

attorney's failure to evaluate or understand the legal consequences of a chosen course of action insufficient ground for relief under Rule 60(b


illness of lawyer and lawyer's mistake as to applicable law insufficient grounds for relief under Rule 60(b


litigant's failure to communicate effectively with counsel, and attorney's tactical decision not to file opposing motions, not grounds for relief under Rule 60(b


Context: Specifically, it is up to this Court to determine whether Defendants' inclusion of the Ten Commandments in the displays was a "purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message." To satisfy this prong of the Lemon test, Plaintiffs must show that Defendants' predominate purpose for the displays was religious.

examining "pre-eminent purpose for posting the Ten Commandments on schoolroom walls"

See also Stone, 449 U.S. at 41, 101 S.Ct. 192 (examining “pre-eminent purpose for posting the Ten Commandments on schoolroom walls”); Aguillard, 482 U.S. at 599, 107 S.Ct. 2573 (Powell, J., concurring) (“A religious purpose alone is not enough to invalidate an act of a state legislature.

"Although a totally secular purpose is not required, it is clear that the secular purpose requirement is not satisfied ... by the mere existence of some secular purpose, however dominated by religious purposes."

See Adland, 307 F.3d at 480 (“Although a totally secular purpose is not required, it is clear that the secular purpose requirement is not satisfied ... by the mere existence of some secular purpose, however dominated by religious purposes.”) (internal quotation marks and citations omitted).


Context: Missouri's interest in preserving public confidence in the fact and appearance of the integrity and impartiality of the judiciary was compelling and outweighed the employee's interest in publicly expressing her political preference.

Connealy v. Walsh, supra, 412 F.Supp. at 158; see also Phillips v. Adult Probation Dep’t of San Francisco, 491 F.2d 951 (9th Cir.1974) (deputy probation officer may be prohibited from displaying signs expressing opinion in favor of fugitive radicals).

judicial prohibition against institution of litigation by probation officer invalid because motivated by judge's disapproval of the litigation, not disruption of court practices

But see Abbott v. Thetford, 529 F.2d 695 (5th Cir.1976) (judicial prohibition against institution of litigation by probation officer invalid because motivated by judge’s disapproval of the litigation, not disruption of court practices).


Context: We hold that JRS & G's takings claim accrued not later than February of 1994 upon the completion of the 1994 fence. The 1994 security fence ran across JRS & G's plant area, cutting off JRS & G's access to its pond and stockpile areas.

See Loretto, 458 U.S. at 422, 102 S.Ct. 3164 (finding cables attached by screws and nails and a box attached by bolts to be sufficiently permanent to comprise a physical taking); see also Hendler, 952 F.2d at 1376 (finding that groundwater monitoring wells were permanent in nature given their structure).