noting that a judge's comments on the evidence "must be designed to avoid unduly influencing or otherwise invading the province of the jury"


Context: Our Supreme Court has consistently condemned conduct that invades the exclusive province of the jury to resolve factual disputes, assess credibility and decide whether the State's evidence establishes guilt.

directing that "[a] prosecutor should neither argue facts that are not in the record, nor expressly or implicitly vouch for the credibility of the victim"

State v. McLean, 205 N.J. 438, 463, 16 A.3d 332 (2011) (barring expert and lay opinion testimony on ultimate issues, which are the province of the jury); State v. Denofa, 187 N.J. 24, 43, 898 A.2d 523 (2006) (declaring resolution of factual disputes about territorial jurisdiction, an element of a crime, to be within the province of the jury not the court); State v. Frisby, 174 N.J. 583, 595, 811 A.2d 414 (2002) (noting that expert opinion on a witness’ credibility encroaches upon the province of the jury); State v. Biegenwald, 106 N.J. 13, 44, 524 A.2d 130 (1987) (noting that a judge’s comments on the evidence “must be designed to avoid unduly influencing or otherwise invading the province of the jury”); see also State v. Bradshaw, 195 N.J. 493, 510, 950 A.2d 889 (2008) (directing that “[a] prosecutor should neither argue facts that are not in the record, nor expressly or implicitly vouch for the credibility of the victim”); State v. Feaster, 156 N.J. 1, 81, 716 A.2d 395 (1998) (explaining that “[b]ecause it is exclusively within the province of the jury to find fact and evaluate witness credibility, a trial court may not vouch for the credibility of a witness”).


explaining that "[b]ecause it is exclusively within the province of the jury to find fact and evaluate witness credibility, a trial court may not vouch for the credibility of a witness"


Context: Majority Op. at 263. This might very well be true. Indeed, we might guess as to whether the court would have concluded that Watkins's conduct did in fact qualify for the enhancement. But I do not think we should affirm a defendant's sentence based on a hunch, even a strong one.

"[Tjhis Court cannot assume, without unambiguous indication to the contrary, that the sentence would be the same absent the error."

See United States v. Feldman, 647 F.3d 450, 459 (2d Cir.2011) (“[Tjhis Court cannot assume, without unambiguous indication to the contrary, that the sentence would be the same absent the error.”); cf. United States v. Crosby, 397 F.3d 103, 117-18 (2d Cir.2005) (“Perhaps in some cases an appellate court could make an educated guess as to the likely outcome of a remand, but that guess might be wrong____”).

"Perhaps in some cases an appellate court could make an educated guess as to the likely outcome of a remand, but that guess might be wrong____"


Context: Subsequent appellate authority, however, excludes businesses from the definition of "consumer," stating unequivocally that a consumer is an individual who "purchases goods and services for personal, family or household use."

holding that the challenged practices were not consumer-oriented under SS 349 because they were directed only at prospective insurance agents

Sheth v. New York Life Ins. Co., 273 A.D.2d 72, 709 N.Y.S.2d 74, 75 (1st Dep’t 2000) (holding that the challenged practices were not consumer-oriented under § 349 because they were directed only at prospective insurance agents); see also Cruz v. NYNEX Info. Res., 263 A.D.2d 285, 703 N.Y.S.2d 103, 107 (1st Dep’t 2000) (“In New York law, the term ‘consumer’ is consistently associated with an individual or natural person who purchases goods, services or property primarily for ‘personal, family or household purposes.’”).

"In New York law, the term 'consumer' is consistently associated with an individual or natural person who purchases goods, services or property primarily for 'personal, family or household purposes.'"


Context: Consequently, Coder has "no constitutional right to a clemency hearing." Likewise, given the absence of any protected interest in obtaining clemency, the failure to respond to a request for remission under Article 74 does not give rise to a due process violation or otherwise provide a valid basis for habeas corpus relief.

See Ward v. Province, 283 Fed. Appx. 615, 617-618 (10th Cir.2008) (rejecting the petitioner’s claim that his procedural due process rights were violated when the state parole board failed to respond to his clemency request, since the board “has discretion to decide whether to consider an offender for clemency” and, thus, “there is no constitutionally protected liberty interest”); see also Gaddy v. Michael, 519 F.2d 669, 673-675 (4th Cir.1975) (explaining that, to obtain habeas corpus relief, a petitioner must establish a violation of his constitutional or statutory rights and resulting prejudice).

rejecting the petitioner's claim that his procedural due process rights were violated when the state parole board failed to respond to his clemency request, since the board "has discretion to decide whether to consider an offender for clemency" and, thus, "there is no constitutionally protected liberty interest"


Context: This is not to say that a compensation carrier is immune from all intentional torts. The workers' compensation scheme does not immunize a compensation carrier from wrongdoing which occurs independently of its claims handling.

adjuster who fraudulently edited the statement of a claimant which results in the denial of benefits constitutes an intentional act independent of the handling of a workers' compensation claim

Sibley v. Adjustco, Inc., 596 So.2d 1048 (Fla.1992) (adjuster who fraudulently edited the statement of a claimant which results in the denial of benefits constitutes an intentional act independent of the handling of a workers’ compensation claim); cf. Associated Indus. of Fla. Prop. & Cas. Trust v. Smith, 633 So.2d 543 (Fla. 5th DCA 1994) (it is not an independent tort for a work ers’ compensation carrier to withdraw benefits, as a wrongful termination can be remedied under the statute).

it is not an independent tort for a work ers' compensation carrier to withdraw benefits, as a wrongful termination can be remedied under the statute


Context: In reliance on Ingraham, the Ninth Circuit, as well as a number of other circuits, held that excessive and unreasonable corporal punishment of public school students violates the students' constitutional rights.

See Koch, 96 F.3d at 1304 (concluding that teacher’s use of excessive force with high school students in 1990 and 1991 violated plaintiffs’ substantive due process rights); see also Metzger v. Osbeck, 841 F.2d 518, 520 (3d Cir.1988) (holding excessive force in public school context is a violation of substantive due process guaranteed by the Fourteenth Amendment); Wise v. Pea Ridge Sch. Dist., 855 F.2d 560, 565 (8th Cir.1988) (same); Webb v. McCullough, 828 F.2d 1151, 1159 (6th Cir.1987) (same); Garcia v. Miera, 817 F.2d 650, 653 (10th Cir.1987) (same); Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980) (same).

concluding that teacher's use of excessive force with high school students in 1990 and 1991 violated plaintiffs' substantive due process rights


Context: Nevertheless, our appellate courts have not applied the Zerbst standard to the waiver of a defendant's right to raise a double jeopardy defense. Defendants have, therefore, been deemed to have waived the right to assert the defense . simply by failing to do so at various stages in the trial and appellate process.

See, e.g., Commonwealth v. Dunnington, 390 Mass. 472, 479 (1983) (waiver for failing to assert defense at de novo jury trial following bench trial); Commonwealth v. Deeran, 397 Mass, at 142 (waiver for failing to assert defense in first motion for a new trial).

See also Poretta v. Commonwealth, 409 Mass. 763, 769 (1991) (permissibility of reprosecution following the defendant’s “successful motion for mistrial does not depend on whether the motion satisfied the ‘knowing, intelligent, and voluntary’ standard of Johnson v. Zerbst”). Cf. Commonwealth v. Norman, 27 Mass. App. Ct. at 87-88 (finding no waiver, but distinguishing the case on the ground that it involved successive prosecutions in different courts, thereby implicating issues similar to jurisdiction, which may be challenged at any time).


Context: Where elaborate administrative enforcement is provided by the statute it is deemed unlikely that "Congress absentmindedly forgot to mention an intended private action." The enforcement of the statute thus is vested in the FCC.

no private right of action may be implied under the fairness doctrine, 47 U.S.C. SS 315(a

See Schnapper v. Foley, 667 F.2d 102, 116 (D.C.Cir.1981), cert. denied,-U.S.-, 102 S.Ct. 1448, 71 L.Ed.2d 661 (1982) (no private right of action under Public Broadcasting and Communications Acts because the courts “may not determine the disposition of controversies that Congress has committed to the discretion of the F.C.C.”); see also, Belluso v. Turner Communications Corp., 633 F.2d 393, 397 (5th Cir. 1980) (no private right of action may be implied under the fairness doctrine, 47 U.S.C. § 315(a)); Daly v. Columbia Broadcasting System, Inc., 309 F.2d 83, 86 (7th Cir. 1962) (no private cause of action under § 315(a) of the Act providing for equal time for political candidates); Ahmad v. Levi, 414 F.Supp. 597, 603 (E.D.Pa.1976) (no private right of action under § 315(a) providing for equal time for conflicting opinions because the F.C.C. is the exclusive primary forum in which alleged violations of the Act may be vindicated); Post v. Payton, 323 F.Supp. 799, 802 (E.D.N.Y.1971) (no private right of action under § 312 of the Act because the Act did not confer any private rights); Ackerman v. Columbia Broadcasting System, Inc., 301 F.Supp. 628, 631 (S.D.N.Y.1969) (no private right of action under § 315(a) because no new rights created and no authorization for suit in federal courts); Gordon v. National Broadcasting Co., 287 F.Supp. 452, 455-56 (S.D.N.Y.1968) (F.C.C. is exclusive forum for remedy).

no private right of action under Public Broadcasting and Communications Acts because the courts "may not determine the disposition of controversies that Congress has committed to the discretion of the F.C.C."


no private cause of action under SS 315(a) of the Act providing for equal time for political candidates


no private right of action under SS 312 of the Act because the Act did not confer any private rights


Context: Under section 39-11-128, C.R.S$.2015, a county treasurer must make "diligent inquiry" into information available in county records. Neither Siddoway nor White Cap Mining Co. say that a treasurer has no duty to search county records; they merely state that a treasurer need not search beyond county records to ascertain taxpayers' addresses.

See Siddoway, 189 Colo. at 176, 538 P.2d at 113 (holding that a treasurer need not search miscellaneous personal correspondence after an address had been found in the county's records); White Cap Mining Co., 115 Colo. at 408, 174 P.2d at 733 (stating that a treasurer need not search secretary of state records upon failure to locate an address in county records); see also Schmidt v. Langel, 874 P.2d 447, 450 (Colo.App.1993) (interpreting Siddoway and White Cap Mining Co. in this way).


stating that a treasurer need not search secretary of state records upon failure to locate an address in county records


Context: The relevant record thus contains and consists of Nosa's own assertion that no promises or inducements led to his guilty plea, and thus his bare allegation to the contrary neither meets a minimum threshold of credibility nor overcomes the presumption the record truly reflects the facts. Therefore, and assuming Nosa has preserved error on this claim, we find it to be without merit.

stating district court could have summarily dismissed application for postconviction relief where applicant's allegation directly contradicted the overwhelming record

See, e.g., Foster v. State, 395 N.W.2d 637, 638 (Iowa 1986) (holding applicant for postconviction relief not entitled to hearing where allegation directly contradicted record and minimum threshold of credibility not met); State v. Boge, 252 N.W.2d 411, 414 (Iowa 1977) (same); see also Wise v. State, 708 N.W.2d 66, 70-71 (Iowa 2006) (stating district court could have summarily dismissed application for postconviction relief where applicant’s allegation directly contradicted the overwhelming record).


Context: P44 Furthermore, the trial court erred when it relied on the Golladay standard for evaluating the sufficiency of the evidence supporting alternative means applicable in a criminal case to the jury's verdict in a civil case. In a criminal case, proof must be beyond a reasonable doubt to satisfy due process; in a civil case, a preponderance of the evidence is sufficient. It is frequently said that a trial court abuses its discretion when it applies the wrong law.

See, e.g., State v. Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007) (a trial court abuses its discretion when it applies the wrong legal standard); Gillett v. Conner, 132 Wn.

But see State v. Hatley, 41 Wn. App. 789, 793 n.2, 706 P.2d 1083 (abuse of discretion standard does not apply when the trial court erred in applying the law), review denied, 104 Wn.2d 1024 (1985).


Context: The Court finds that these disclosures, following the SEC's initiation of its enforcement action, potentially revealed new information "addressed to," and "revealing to the market the truth regarding," the alleged misstatements and omissions.

"Where a Rule 12(b)(6) motion is based on an affirmative defense, the complaint must show on its face that the claim is barred by the defense."

See, Azzolini, 2005 WL 3448053, at *6 (noting that “the lapse of time between the behavior complained, of and the loss is a factor to consider in determining whether the loss causation requirement has been met” (emphasis added) (internal citation omitted)); In re Fuwei Films Sec. Litig., 634 F.Supp.2d 419, 444 (S.D.N.Y. 2009) (concluding that an assessment of defendants’ negative causation arguments was best left for summary judgment); see also Local 295, 731 F.Supp.2d at 710 (“Where a Rule 12(b)(6) motion is based on an affirmative defense, the complaint must show on its face that the claim is barred by the defense.”).

noting that "the lapse of time between the behavior complained, of and the loss is a factor to consider in determining whether the loss causation requirement has been met" (emphasis added


concluding that an assessment of defendants' negative causation arguments was best left for summary judgment


Context: We also reject Singh's contention that the BIA did not adequately consider his evidence.

the BIA "does not have to write an exegesis on every contention"

See Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.2006) (finding petitioner had not overcome the presumption that the BIA reviewed the record); see also Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir.2010) (the BIA “does not have to write an exegesis on every contention”).


Context: Even after the MMS served Plaintiffs with an administrative subpoena, Plaintiffs still did not suffer any immediate or substantial effect for refusing to comply with it. Any "consequences" Plaintiffs claim to have suffered or to be suffering as a result of their procedural wrangling with Defendants do not constitute direct and immediate impacts because they do not impose any appreciable obligations upon their daily business.

stating that agency's action determining jurisdiction only imposed obligation to respond to agency's further inquiries

See CEC Energy, 891 F.2d at 1110-11 (stating that agency’s action determining jurisdiction only imposed obligation to respond to agency’s further inquiries); cf. Standard Oil, 449 U.S. at 243, 101 S.Ct. 488 (determining that agency’s issuance of complaint had no impact “other than the disruptions that accompany any major litigation”).

determining that agency's issuance of complaint had no impact "other than the disruptions that accompany any major litigation"


Context: Second, to be considered an alternative, the alternative design must simply provide "the same or similar functional capabilities."

explaining that to be patentable, there cannot only be one "possible [ornamental] form of the article that could perform its function"

Rosco, 304 F.3d at 1378 (reversing functionality finding because alternative mirror designs could still provide a similar level of performance); see also Seiko Epson Corp. v. Nu-Kote Intern., Inc., 190 F.3d 1360, 1368 (Fed.Cir.1999) (explaining that to be patentable, there cannot only be one “possible [ornamental] form of the article that could perform its function”).


Context: P 21 In providing all parties with full disclosure, the fiduciary meets its obligation to act with the utmost loyalty and integrity.

holding that broker who represents seller cannot represent buyer in purchase of property from seller without seller's knowledge and consent

Id. at 502, 573 P.2d at 902 (“The undertaking of such a dual representation of conflicting interests, without the knowledge or approval of the competing principals, would, of course, not be countenanced.”); see also Warren v. Mangels Realty, 23 Ariz.App. 318, 321, 533 P.2d 78, 81 (1975) (holding that broker who represents seller cannot represent buyer in purchase of property from seller without seller’s knowledge and consent).

"The undertaking of such a dual representation of conflicting interests, without the knowledge or approval of the competing principals, would, of course, not be countenanced."


Context: Because the FDIC concedes Jencks's applicability in this case, Landry has established a prima facie violation if the documents in question cover the same territory as the examiners' testimony. After examining the documents and the examiners' testimony we find that several of them do so. Even so, a privilege might beat the Jencks claim.

presuming that, in a license revocation hearing in which the agency had adopted the Jencks Act, a witness's opinions in a report that formed part of the deliberative process would be protected from Jencks Act disclosure

See Norinsberg Corp. v. USDA, 47 F.3d 1224, 1229 n. 5 (D.C.Cir.1995) (presuming that, in a license revocation hearing in which the agency had adopted the Jencks Act, a witness’s opinions in a report that formed part of the deliberative process would be protected from Jencks Act disclosure); see also Communist Party, 254 F.2d at 327. But see Jencks, 353 U.S. at 671-72, 77 S.Ct. 1007 (noting that criminal actions must be dismissed when the government chooses not to comply with a court order to produce relevant statements or' reports on the ground of privilege). But the FDIC here makes no claim that privilege defeats its Jencks obligations— though the ALJ did.


Context: . In assault cases, the Court and the Court of Appeals have held that indictments were not defective even where words from both the simple and aggravated assault subsections were used.

See Anthony v. State, 349 So.2d 1066, 1067 (Miss.1977) (defendant need only compare the indictment with the statute to know he was charged with aggravated assault rather than simple assault); Toliver v. State, 337 So.2d 1274, 1276 (Miss.1976) (it was clear that defendant was charged only with simple assault, even though indictment included language from both simple and aggravated assault subsections).

indictment that used "phraseology from both subsections" was not defective

See also Johnson v. State, 910 So.2d 1174, 1179 (¶ 16) (Miss.Ct.App.2005) (indictment that used “phraseology from both subsections” was not defective).


it was clear that defendant was charged only with simple assault, even though indictment included language from both simple and aggravated assault subsections


Context: Appellate courts have been quite careful to distinguish between the types of state action which are affirmative or official and those which are passive or dormant. The second district held in First Federal that where the only action taken by the Department of Revenue to collect taxes was the sending of a "formal notice assessment and demand" for delinquent taxes specifying the amount and date due, that such "notice" was a mere naked demand rather than "official action" and the "threat" was contingent and anticipatory rather than real and imminent. Accordingly, the First Federal court determined that in the absence of affirmative or official action to enforce the demand, venue would lie only in the county where the state agency maintains its. official headquarters.

where Department of Revenue gave taxpayers written notice that a tax warrant and execution had been issued against them and delivered to area supervisor, and warrant was subsequently recorded in official records of county in which taxpayers resided, Department of Revenue's actions were of such nature as to require that taxpayers be allowed to bring suit in county of their residence against the Department of Revenue

Cf. Swinscoe v. State, 320 So.2d 11 (Fla. 4th DCA 1975), cert. dism’d, 337 So.2d 976 (Fla. 1976) (where Department of Revenue gave taxpayers written notice that a tax warrant and execution had been issued against them and delivered to area supervisor, and warrant was subsequently recorded in official records of county in which taxpayers resided, Department of Revenue’s actions were of such nature as to require that taxpayers be allowed to bring suit in county of their residence against the Department of Revenue); Department of Revenue v. Arvida Corp., 315 So.2d 235 (Fla. 2d DCA 1975), cert. dism’d, 336 So.2d 1181 (Fla.1976) (Department of Revenue efforts to collect allegedly past due intangible taxes included a notice assessment which stated that “tax warrant and execution had in truth and in fact already issued,” constituted official action that was both real and imminent, justifying suit in a county other than situs of Department’s official headquarters).

See also Straughn v. G.J.M., Inc., 344 So.2d 318 (Fla. 1st DCA 1977) (where the only action taken by the Department of Revenue in relation to documentary stamp tax assessment imposed upon assignment of lease had been a request for information and issuance of proposed notice of assessment and penalty, the action by the Department did not constitute an attempt to seize and sell property to enforce collection of the disputed tax so that venue did not lay in the county in which the land was located but rather in Leon County, the official headquarters of the Department); Department of Revenue v. Crisp, 337 So.2d 404 (Fla. 2d DCA 1976), cert. denied, 346 So.2d 1248 (Fla.1977) (notice of assessment of additional documentary stamp taxes and demand for payment, unaccompanied by further action, did not imminently threaten taxpayers’ due process and equal protection rights and was not an imminent “attempt” to seize and sell property of taxpayer; thus, proper venue of taxpayer’s action for declaratory judgment against Department of Revenue was Leon County, the official headquarters of the Department).


Department of Revenue efforts to collect allegedly past due intangible taxes included a notice assessment which stated that "tax warrant and execution had in truth and in fact already issued," constituted official action that was both real and imminent, justifying suit in a county other than situs of Department's official headquarters


Context: Two courts of appeals have explicitly considered under the First Amendment a claim that state action unlawfully burdened a marital relationship.

See Singleton v. Cecil, 133 F.3d 631, 635 (8th Cir.1998) (rejecting claim that discharge of at-will police employee violated his First Amendment right of intimate association where wife plotted to have police chief arrested), aff'd on this point, 176 F.3d 419, 423-24 (8th Cir.1999) (in banc); Adkins v. Board of Education, 982 F.2d 952, 955-56 (6th Cir.1993) (upholding claim that denial of continued employment because of school superintendent’s dislike of employee’s husband violated her First Amendment right of intimate association); cf. Shahar v. Bowers, 114 F.3d 1097, 1110 (11th Cir.1997) (in banc) (rejecting claim that withdrawal of job offer for position of state prosecutor because of her same-sex “wedding” violated her First Amendment right of intimate association).

rejecting claim that withdrawal of job offer for position of state prosecutor because of her same-sex "wedding" violated her First Amendment right of intimate association


upholding claim that denial of continued employment because of school superintendent's dislike of employee's husband violated her First Amendment right of intimate association


Context: Furthermore, Mrs. Jones's argument that, because a remand was ordered, the decision of the Court of Veterans Appeals is not final for purposes of review by an Article III appellate court is similarly without merit. As we have previously held, decisions of the Court of Veterans Appeals rendering an interpretation of a statutory provision and remanding for further proceedings in accordance with that interpretation constitute final and appealable decisions.

holding that a Court of Veterans Appeals decision interpreting 38 U.S.C. SS 8713, overruling the Secretary's prior interpretation and remanding back to the Board was a final and appealable decision

Travelstead v. Derwinski 978 F.2d 1244, 1248 (Fed.Cir.1992) (holding that a Court of Veterans Appeals decision interpreting 38 U.S.C. § 8713, overruling the Secretary’s prior interpretation and remanding back to the Board was a final and appealable decision); see also Sullivan v. Finkelstein, 496 U.S. 617, 625, 110 S.Ct. 2658, 2663-64, 110 L.Ed.2d 563 (1990) (holding that a district court’s remand order effectively invalidating certain regulations of the Secretary of Health and Human Services was an immediately appealable order).

holding that a district court's remand order effectively invalidating certain regulations of the Secretary of Health and Human Services was an immediately appealable order


Context: The Kurzets ignore the record evidence of phone calls Allen received from Mr. Kurzet, as well as numerous phone calls Allen made "concerning the job." Because the Kurzets fail to marshal the evidence in favor of finding number fifteen, we do not address this challenge.

"We decline to address this issue because defendant has failed to marshal the evidence."

See State v. Mincy, 888 P.2d 648, 652 n. 1 (Utah.Ct.App.1992) (“We decline to address this issue because defendant has failed to marshal the evidence.”); cf. State v. Ortiz, 782 P.2d 959, 962 (Utah.Ct.App.1989) (“We have consistently held that if counsel on appeal does not provide citations to the record, we need not reach the merits of his or her substantive claims.”).

"We have consistently held that if counsel on appeal does not provide citations to the record, we need not reach the merits of his or her substantive claims."


Context: Plaintiff has not contested DOJ's work product assertion and therefore has conceded the issue. Moreover, even if Plaintiff had contested the issue, as the courts concluded in Wright and Dorsey, the work product privilege covers the withheld materials.

See Wright, 121 F.Supp.3d at 184-86, 2015 WL 4910502, at *10-11; Dorsey, 85 F.Supp.3d at 217, 2015 WL 1431707, at *4 (holding that Title III authorization memoranda were covered by the work product privilege); see also Wolfson v. United States, 672 F.Supp.2d 20, 30 (D.D.C.2009) (finding that memoranda recommending continued wiretap authorization were protected by attorney work-product privilege).


Context: P54 In addition, and fundamental to this case, requiring an insurer to compensate the insured for diminished value is completely at odds with the precise disjunctive terms used in the automobile insurance policy at issue, regardless of whether this diminished value results from stigma or tangible imperfections. Indeed, a number of jurisdictions have declined to hold insurers liable for diminished value attributable to irreparable physical damage.

See, e.g., O’Brien, 785 A.2d at 290 (“[u]nder the ‘repair or replace’ limitations on the policy,” the insurer’s “obligation includes neither diminution in value resulting from a ‘market psychology’ nor that resulting from the minute physical imperfections that are inherent to any repair”); Wildin, 249 Wis. 2d at 486 (affirming lower court decision denying compensation for diminished value due to irreparable structural damage); cf. Johnson v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 1, 2, 754 P.2d 330 (Ct. App. 1988) (upholding trial court ruling denying compensation for diminished value where it was unknown whether the decrease in market value was due to physical imperfections, stigma, or both).

"[u]nder the 'repair or replace' limitations on the policy," the insurer's "obligation includes neither diminution in value resulting from a 'market psychology' nor that resulting from the minute physical imperfections that are inherent to any repair"


affirming lower court decision denying compensation for diminished value due to irreparable structural damage


Context: Therein, the District Court concluded that Roach had four predicate convictions under the ACCA, three of which were serious drug offenses committed 15 days apart. The Roach court rejected that contention, concluding that, as long as the offenses are committed on occasions different from one another, they constituted separate predicate offenses under the ACCA.

See e.g. United States v. Johnson, 130 F.3d 1420, 1480-31 (10th Cir.1997) (prior convictions for drug trafficking offenses that occurred three days apart were committed on occasions different from one another under the ACCA), cert, denied, 525 U.S. 829, 119 S.Ct. 78, 142 L.Ed.2d 61 (1998); United States v. Maxey, 989 F.2d 303, 306-07 (9th Cir.1993) (two sales of PCP-laced cigarettes occurring within 24 days of each other were separate predicate convictions under the ACCA); United States v. Kelley, 981 F.2d 1464, 1473-74 (5th Cir.) (two deliveries of cocaine two weeks apart in different counties were separate offenses for purposes of the ACCA), cert, denied, 508 U.S. 944, 113 S.Ct. 2427, 124 L.Ed.2d 647 (1993); United States v. Samuels, 970 F.2d 1312, 1315 (4th Cir.1992) (two drug offenses one day apart were committed on occasions different from one another under the ACCA); United States v. McDile, 914 F.2d 1059, 1061-62 (8th Cir.1990) (sales of drugs on September 15, November 15, 17, and 23, 1983, were separate offenses for purposes of the ACCA), cert, denied, 498 U.S. 1100, 111 S.Ct. 997, 112 L.Ed.2d 1080 (1991); see also United States v. Hill, 440 F.3d 292 (6th Cir.2006) (two burglaries occurring immediately after each other, at properties located across the street from one another, were committed on occasions different from one another under the ACCA).


two sales of PCP-laced cigarettes occurring within 24 days of each other were separate predicate convictions under the ACCA


two deliveries of cocaine two weeks apart in different counties were separate offenses for purposes of the ACCA


two drug offenses one day apart were committed on occasions different from one another under the ACCA


sales of drugs on September 15, November 15, 17, and 23, 1983, were separate offenses for purposes of the ACCA


Context: In this case, the child-victim's mother and Dr. Calhoun provided additional information. We hold that witnesses other than the patient can provide this foundational information.

social worker's testimony established that the declarant made statements to her with expectation of receiving medical benefit

See White v. Illinois, 502 U.S.-, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (victim’s statement to medical personnel admissible although victim did not testify at trial); see also United States v. Tornowski, 29 M.J. 578, 581 (A.F.C.M.R.1989) (social worker’s testimony established that the declarant made statements to her with expectation of receiving medical benefit).

victim's statement to medical personnel admissible although victim did not testify at trial


Context: Lambeth's continued detention to await the arrival of a canine unit after the completion of the traffic stop investigation and after the completion of the investigations into the troopers' other reasonable suspicions -- that Lambeth was driving with an expired license, had no registration sticker, and was driving while intoxicated -- violated his Fourth Amendment rights. Because Lambeth's detention should have ended prior to the point in time when Trooper Hatfield said that he smelled marijuana on Lambeth, this fact cannot retroactively justify Lambeth's unauthorized, continued detention.

See Davis, 947 S.W.2d at 244-45; $217,590.00 In U.S. Currency, 54 S.W.3d at 924 (explaining that traffic stop will not justify continued detention to await the arrival of a drug detection dog).

holding officer's articulated reasonable suspicion justified appellant's contin ued detention to await canine unit when officer suspected appellant of drug trafficking based on appellant's prior arrests for drug offenses, appellant's lie about his prior criminal history, and appellant's possession of small jeweler's bags used in cocaine trafficking

Cf. Coleman v. State, 188 S.W.3d 708, 719 (Tex.App.-Tyler 2005, pet. ref'd) (holding officer’s articulated reasonable suspicion justified appellant’s contin ued detention to await canine unit when officer suspected appellant of drug trafficking based on appellant’s prior arrests for drug offenses, appellant’s lie about his prior criminal history, and appellant’s possession of small jeweler’s bags used in cocaine trafficking), cert. denied, — U.S. -, 127 S.Ct. 502, 166 L.Ed.2d 376 (2006).


Context: Objectors contend inadequate representation is demonstrated in the settlement's allocation terms, which designate the vast majority of the fund to Injury Claims, while Purchase Claims are capped at $250,OOO. But varied relief among class members with differing claims in class settlements is not unusual.

See Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1146 (8th Cir.1999) (“[Ajlmost every settlement will involve different awards for various class members.”); see also Prudential, 148 F.3d at 289-90 (holding the district court properly certified a national settlement class in a circumstance in which the class was comprised of policyholders who allegedly were the victims of several different types of fraudulent and misleading sales practices and the settlement created an alternative dispute resolution mechanism to determine the kind and amount of relief to be granted). Such differences in settlement value do not, without more, demonstrate conflicting or antagonistic interests within the class.

"[Ajlmost every settlement will involve different awards for various class members."


Context: Additionally, as Janczak explains, the record makes it arguable that the decision to terminate him became definitive not on Oden's stated date of August 14, but instead later that month, shortly after additional information about Janczak's medical condition had been received.

observing that "[w]henever termination occurs while the employee is on leave, that timing has significant probative force," and describing a termination that "occurred just one day after [the employee] told [the employer] that she would need to take a full six weeks off and could not return sooner" as involving "particularly suggestive" timing

See DeFreitas, 577 F.3d at 1160 (observing that “[w]henever termination occurs while the employee is on leave, that timing has significant probative force,” and describing a termination that “occurred just one day after [the employee] told [the employer] that she would need to take a full six weeks off and could not return sooner” as involving “particularly suggestive” timing); cf. Brown, 700 F.3d at 1227 (stating that an employee’s being “fired only two days after his emails and meeting with [the employer] about taking time off’ for FMLA reasons “may be enough to prove ■the third element of an interference claim, especially because the employer’s intent is irrelevant”). A reasonable jury might rely on this information to infer that the decision to eliminate Janczak’s position was related to his medical condition and his exercise of FMLA leave.

stating that an employee's being "fired only two days after his emails and meeting with [the employer] about taking time off' for FMLA reasons "may be enough to prove #the third element of an interference claim, especially because the employer's intent is irrelevant"


Context: As discussed above, Summerrain is a "petition preparer," as that term is defined by Section 110(a). Accordingly, she must provide her social security number along with her signature on each document she prepares. 11 U.S.C. SS 110(c)(2). Supplying the tax identification number of the partnership through which she conducted business does not meet the plain requirements of Section 110(c).

rejecting argument that petition preparer should be allowed to use some form of identification other than social security number because "[u]se of an alternative number ... would be less effective for tracking the identifies of petition preparers in the nation-wide bankruptcy system"

See In re Rausch, 197 B.R. at 116 (rejecting argument that petition preparer should be allowed to use some form of identification other than social security number because “[u]se of an alternative number ... would be less effective for tracking the identifies of petition preparers in the nation-wide bankruptcy system”).

In re Gomez, 259 B.R. 379, 384 (Bankr.D.Colo.2001) (requiring individual to provide social security number even though petition preparer was employee of corporation). Moreover, allowing a petition preparer to circumvent the requirements of Section 110(c) in such a manner would undermine the purposes of Section 110(c) by inhibiting the easy identification and tracking of unscrupulous petition preparers.


Context: . This conflict of interest not only suggests a heightened level of knowledge of Rish, but also is grounds for disciplinary proceedings.

See Florida Bar v. Madsen, 400 So.2d 947 (Fla.1981) (public reprimand for attempting to represent buyers of mobile home when attorney also represented seller); Florida Bar v. Mueller, 351 So.2d 960 (Fla.1977) (disbarment based in part on attorney's conduct in representing buyer in purchase of business and later representing seller in suit against buyer); Florida Bar v. Moore, 194 So.2d 264 (Fla.1966) (three-month suspension for representing both life tenant and trustee); see also Florida Bar v. Shannon, 398 So.2d 453 (Fla.1981) (public reprimand warranted for failing to carry out contract for professional services by overlooking defect in title and for subsequent delay in bringing quiet title action to clear defect).


disbarment based in part on attorney's conduct in representing buyer in purchase of business and later representing seller in suit against buyer


Context: Although the victim's testimony that he did not remember saying "Elliot Fucking Snider" was not directly inconsistent with his prior use of that name in court, a witness' claim that he doesn't remember making a particular statement may be deemed to be inconsistent with the witness' actual making of that statement.

victim's testimony that he did not remember who had shot him was deemed to be inconsistent with victim's prior statement to police identifying defendant as person who shot him

See State v. Whelan, 200 Conn. 743, 748-49 n.4, 513 A.2d 86 (“A statement’s inconsistency ... is not limited to cases in which diametrically opposed assertions have been made. . . . [IJnconsistencies may be found in changes in position and ... in denial[s] of recollection.”); see also State v. Trotter, 69 Conn. App. 1, 17-21, 793 A.2d 1172 (victim’s testimony that he did not remember who had shot him was deemed to be inconsistent with victim’s prior statement to police identifying defendant as person who shot him), cert. denied, 260 Conn. 932, 799 A.2d 297 (2002).

"A statement's inconsistency ... is not limited to cases in which diametrically opposed assertions have been made. . . . [IJnconsistencies may be found in changes in position and ... in denial[s] of recollection."


Context: The trial court denied the motion and began the trial immediately. The court of appeals reversed and concluded that "Walker's right to a fair trial was violated because his counsel was deprived of an adequate opportunity to determine the existence of a substantial insanity defense."

not an abuse of discretion to deny continuance to prepare insanity defense because counsel was appointed three months before trial and defendant failed to show even "the mere possibility of prejudice"

But see Hutchins v. Garrison, 724 F.2d 1425, 1434-35 (4th Cir.1983) (not an abuse of discretion to deny continuance to prepare insanity defense because counsel was appointed three months before trial and defendant failed to show even “the mere possibility of prejudice”), cert. denied, — U.S. -, 104 S.Ct. 750, 79 L.Ed.2d 207 (1984).

Id. at 1194; see also Hicks v. Wainwright, 633 F.2d 1146, 1150 (5th Cir.1981) (denial of fair trial to refuse requested six-hour continuance to enable defense psychiatric expert to appear and testify).


Context: Suffice it to say, Plaintiffs Motion to Strike lacked any colorable basis in the factual record.

affirming district court's finding that party "failed to make a reasonable inquiry into the factual basis of the amended complaint" and imposition of Rule 11 sanctions

Hilton Hotels Corp. v. Banov, 899 F.2d 40, 43-44 (D.C. Cir. 1990) (affirming district court’s finding that party “failed to make a reasonable inquiry into the factual basis of the amended complaint” and imposition of Rule 11 sanctions); cf. Marina Mgmt. Services, Inc. v. Vessel My Girls, 202 F.3d 315, 325 (D.C. Cir. 2000) (upholding sanctions for counterclaim “which included allegations not necessarily integrally linked to the legitimacy of the ... action”).

upholding sanctions for counterclaim "which included allegations not necessarily integrally linked to the legitimacy of the ... action"


Context: Shi and Lin argue that these facts are insufficient evidence of permanent injury. We believe that the district court's application of the permanent bodily injury enhancement to these facts presents a predominantly factual issue, which we review for clear error.

See Gotti, 459 F.3d at 349 (citing United States v. Selioutsky, 409 F.3d 114, 118-19 (2d Cir.2005)); see also United States v. Baggett, 342 F.3d 536, 540 (6th Cir.2003) (reviewing finding of permanent or life-threatening bodily injury under clearly erroneous standard); United States v. Pandiello, 184 F.3d 682, 685 (7th Cir.1999) (conclusion that assailants inflicted bodily injury reviewed for clear error); United States v. Jacobs, 167 F.3d 792, 798 (3d Cir.1999) (findings regarding permanent or life threatening injury reviewed for clear error); United States v. Price, 149 F.3d 352, 353 (5th Cir.1998) (“severity of a victim’s injuries is a factual determination and thus reviewed for clear error,” construing permanent bodily injury).

applying de novo review to question whether welts fell within Guidelines' definition of bodily injury

But see Pandiello, 184 F.3d at 685 (applying de novo review to question whether welts fell within Guidelines’ definition of bodily injury).


conclusion that assailants inflicted bodily injury reviewed for clear error


findings regarding permanent or life threatening injury reviewed for clear error


"severity of a victim's injuries is a factual determination and thus reviewed for clear error," construing permanent bodily injury


Context: We respectfully disagree; First, neither Return Mail nor the Postal Service discusses the significance, if any, of the word "person" as-used in SS 18(a)(1)(B). This issue is distinct - and independent from the dispute before us regarding the meaning of the phrase "sued for infringement." Return Mail's failure to develop any arguments on this issue would typically constitute waiver.

"Our law is well established that arguments not raised in the opening brief are waived."

See SmithKline Beecham, 439 F.3d at 1319 (“Our law is well established that arguments not raised in the opening brief are waived.”); see also Nat. Res. Def. Council, Inc. v. EPA, 25 F.3d 1063, 1074 (D.C. Cir. 1994) (“[F]ailure to raise a particular question of statutory construction before an agency constitutes waiver of the argument in court.”).

"[F]ailure to raise a particular question of statutory construction before an agency constitutes waiver of the argument in court."


Context: "Raw fish procured by processors are likely to have come into contact with the organism in the wild," Bierman concludes. L. monocytogenes is, thus, not an inherent natural constituent of fish but, rather, a bacterial organism present in the environment that comes into contact with, and contaminates, some fish.

See United States v. Union Cheese Co., 902 F.Supp. 778, 786 (N.D.Ohio 1995) (finding L. monocytogenes not to be an inherent natural constituent of cheese but rather the result of environmental contamination); cf. United States v. An Article of Food Consisting of Cartons of Swordfish, 395 F.Supp. 1184 (S.D.N.Y. 1975) (finding mercury to be an added substance because it does not occur naturally in swordfish).


Context: Appellant argues that this factor should weigh in favor of EJJ because he was never offered formal programming and that the district court erred in considering informal programming in his home and school. However, we have consistently held that, in the consideration of this factor, the district court may evaluate the juvenile's willingness to cooperate with informal programming by considering his behavior in school, home, and juvenile detention and his affiliations with gangs.

holding that the juvenile's failure to go to school or participate in online schooling did not support a finding that he was willing to cooperate with juvenile programming

See In re Welfare of P.C.T., 823 N.W.2d 676, 683 (Minn.App.2012), review denied (Minn. Feb. 19, 2013) (holding that the juvenile’s failure to go to school or participate in online schooling did not support a finding that he was willing to cooperate with juvenile programming); see also In re Welfare of N.J.S., 753 N.W.2d 704, 711 (Minn.2008) (stating that consideration of pre-offense voluntary programming and “defiant and uncooperative behavior during [defendant’s] detention” relative to the “programming history” factor was not an abuse of discretion); In re Welfare of K.M., 544 N.W.2d 781, 785 (Minn.App.1996) (holding that the district court did not abuse its discretion by considering juvenile’s failure to participate in school programs and affiliation with gangs under the programming history factor).

stating that consideration of pre-offense voluntary programming and "defiant and uncooperative behavior during [defendant's] detention" relative to the "programming history" factor was not an abuse of discretion


holding that the district court did not abuse its discretion by considering juvenile's failure to participate in school programs and affiliation with gangs under the programming history factor


Context: Thus, in determining whether a claim sufficiently touches and concerns the territory of the United States to confer jurisdiction to U.S. courts, the citizenship or corporate status of the defendant is relevant. If the defendants are U.S. citizens, some of the foreign policy concerns that the presumption against extraterritorial application is intended to reduce may be assuaged or inapplicable, since we would not be haling foreign nationals into U.S. courts to defend themselves. Additionally, the acts of U.S. citizens may impact the United States, whether their actions occur extrat'erritorially or within the United States, particularly if those actions include international law violations.

considering "the expressed intent of Congress ... to provide aliens access to United States courts and to hold citizens of the United States accountable for acts of torture committed abroad"

See, e.g., Al Shimari, 758 F.3d at 530-31 (considering “the expressed intent of Congress ... to provide aliens access to United States courts and to hold citizens of the United States accountable for acts of torture committed abroad”); cf. F. Hoffmann-La Roche Ltd. v. Empagran S.A. 542 U.S. 155, 159, 165, 124 S.Ct. 2359, 2363, 2367, 159 L.Ed.2d 226 (2004) (noting that Congress may impose liability for extraterritorial conduct that has adverse effects within the United States and may do so with even “greater leeway when it seeks to control ... the actions of American companies”).

noting that Congress may impose liability for extraterritorial conduct that has adverse effects within the United States and may do so with even "greater leeway when it seeks to control ... the actions of American companies"


Context: First, when did the movant become aware of the issue in dispute? Second, was the movant diligent in attempting to resolve the dispute and/or in bringing that dispute to the Court's attention as soon as practicable? Third, was the movant otherwise at fault for creating the crisis situation? When an attorney knows of the existence of a dispute and unreasonably delays in bringing that dispute to the Court's attention until the eleventh hour, the attorney has created the emergency situation and the request for relief may be denied outright.

overruling objections to magistrate judge order finding an emergency motion to quash subpoena was untimely when three-weeks' notice was provided for a deposition but the motion to quash was filed only three days before the deposition

See Allstate Ins. Co. v. Nassiri, 2011 WL 4905639, *1 (D.Nev. Oct. 14, 2011) (overruling objections to magistrate judge order finding an emergency motion to quash subpoena was untimely when three-weeks’ notice was provided for a deposition but the motion to quash was filed only three days before the deposition); see also Painter, 2014 WL 6871750, at *1 (requiring parties to comply with the deadline to file pretrial order where emergency motion was filed two business days before deadline because the movant’s attorney waited roughly 30 days to file the motion).

requiring parties to comply with the deadline to file pretrial order where emergency motion was filed two business days before deadline because the movant's attorney waited roughly 30 days to file the motion


Context: However, other factors may motivate or contribute to an accused's decision to attempt suicide. Instead of seeking to avoid punishment, a defendant who attempts suicide may, for reasons unrelated to the crime charged, choose to inflict upon himself or herself a punishment more severe than that following a conviction of the charge.

finding error in exclusion of testimony that offered alternative basis for defendant's attempted suicide

State v. Coudette, 7 N.D. 109, 72 N. W. 913, 915 (1897) (rejecting evidence of attempted suicide as corroboration of accomplice testimony based on likelihood that Sioux Indian would commit suicide when incarcerated to avoid confinement regardless of guilt); see also People v. Carter, 48 Cal.2d 737, 312 P.2d 665, 671 (1957) (finding error in exclusion of testimony that offered alternative basis for defendant’s attempted suicide); Meggison v. State, 540 So.2d 258, 259 (Fla.Dist.Ct.App.1989) (holding that admitting evidence of attempted suicide was error when defendant had already pled guilty and attempt was not probative of guilt).


holding that admitting evidence of attempted suicide was error when defendant had already pled guilty and attempt was not probative of guilt


Context: Section 500 differs in this respect from legislation that specifically provides for payments to school districts.

distinguishing impact aid cases and upholding Washington's scheme for distributing SS 500 funds against challenge by school districts

See, e.g., Shepheard v. Godwin, 280 F.Supp. 869 (E.D.Va.1968) (construing Federal Impact Aid Act, now codified at 20 U.S.C. § 7703, (West.2001), which pays funds directly to school districts burdened by the federal government’s acquisition of property within the district); cf. Carroll v. Bruno, 81 Wash.2d 82, 86, 499 P.2d 876 (1972) (distinguishing impact aid cases and upholding Washington’s scheme for distributing § 500 funds against challenge by school districts).

construing Federal Impact Aid Act, now codified at 20 U.S.C. SS 7703, (West.2001


Context: Courts from other jurisdictions that apply a domicile test have concluded that the act of registering to vote or voting in a new district results in the loss of residence in a district where the voter previously resided.

See Klumker v. Van Allred, 112 N.M. 42, 811 P.2d 75, 78-79 (1991) (finding that three brothers were not residents of the county where their family ranch was located because, although they visited the ranch regularly and kept personal items there, they had moved outside the county and voted at those locations); Kauzlarich v. Bd. of Trs., 78 Ariz. 267, 278 P.2d 888, 891 (1955) (husband and wife were not residents of a county for voting purposes even though they purchased property there, moved a house and some personal property onto the premises, and went there each weekend to work on the property with the intention of moving there because they were still living outside the county, where they had registered to vote and voted); see also Del Rio Indep. Sch. Dist. v. Aldrete, 398 S.W.2d 597, 603 (Tex.Civ.App.1966) (noting that the place where a person votes is evidence of whether that person’s actions corroborate his stated intention to change his residence for voting purposes).

noting that the place where a person votes is evidence of whether that person's actions corroborate his stated intention to change his residence for voting purposes


husband and wife were not residents of a county for voting purposes even though they purchased property there, moved a house and some personal property onto the premises, and went there each weekend to work on the property with the intention of moving there because they were still living outside the county, where they had registered to vote and voted


Context: At oral arguments, Birth's appellate counsel conceded that Birth had not presented this argument to the trial court. Birth cannot prevail by raising on appeal reasons for suppressing evidence that were not presented to the trial court.

See State v. Mack, 255 Kan. 21, 27-28, 871 P.2d 1265 (1994) (determining that defendant could not prevail by presenting on appeal reasons for suppressing identification that were never presented to trial court); see also State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006) (defendant precluded from raising on appeal points not presented to trial court).


Context: While the public certainly has an interest in a competent prosecution of a criminal case, we hold that a mistrial is not manifestly necessary when the trial court believes, as it did in the present case that the prosecutor is "shooting [himself] in the foot with the jury." Clearly, if the Commonwealth makes mistakes which damage its prosecution, it is not entitled to a second bite at the apple due to its poor performance.

trial of defendant by a second jury, after the jury first empanelled had been sworn and discharged because a prosecution witness had not been served a summons and because no other arrangements had been made to ensure the witness' presence violated the constitutional guarantee against double jeopardy

See, e.g., Downum v. United States, 83 S.Ct. at 1035-1036, 372 U.S. at 737-738 (trial of defendant by a second jury, after the jury first empanelled had been sworn and discharged because a prosecution witness had not been served a summons and because no other arrangements had been made to ensure the witness’ presence violated the constitutional guarantee against double jeopardy); cf., Gori v. United States, 367 U.S. at 369, 81 S.Ct. at 1526-1527 (double jeopardy protections prohibit a judge from exercising his authority to grant a mistrial at a trial which is going badly for the prosecution to afford the state another more favorable opportunity to convict the accused).


Context: While Plaintiffs' position would satisfy the public policy of making whole the victims of underinsured motorists, it otherwise runs contrary to the policy guidance from the Rhode Island Supreme Court.

See Dubreuil, 511 A.2d at 302-03; Capuano, 433 A.2d at 956; daSilva, 263 A.2d at 103. It is inconsistent with the well-reasoned holding of the federal court in the Western District of Virginia in Mel ton, which examined a selection form with a similar error. 760 F.Supp.2d at 637-38 (when intent is undisputed, substantial compliance, rather than hypertechnical compliance, is what is required); see also Jefferson, 2009 WL 1765670, at *7-9 (ambiguous selection form, with two inconsistent boxes checked, may be interpreted based on unambiguous intent of insured). Analogous cases from other jurisdictions that ignore intent and impose a hypertechnical UIM selection requirement do not focus on the public policy considerations that the Rhode Island Supreme Court has held must be considered here.

See LaFlam, 69 A.3d at 835 (goal of UIM statute to protect insurers from unwarranted claims); Henderson, 35 A.3d at 906 (courts must construe UIM statute in a manner that affords insurers some financial protection); Ferreira, 809 A.2d at 1101 (courts should avoid interpretation that would impose an “arguably onerous burden on insurers”). It flies in the face of the holding that UIM endorsements must be interpreted in light of the benefit to all parties from certainty and predictability, including in the setting of premiums. Streicker, 583 A.2d at 554; see Century Indem. Co., 815 F.Supp.2d at 516. It ignores the Rhode Island Supreme Court’s consistent emphasis on contract principles, including due respect for the intent of the parties.


courts must construe UIM statute in a manner that affords insurers some financial protection


courts should avoid interpretation that would impose an "arguably onerous burden on insurers"


when intent is undisputed, substantial compliance, rather than hypertechnical compliance, is what is required


Context: In comparing the provisions of the ADEA disapproved in Kimel, and the remedial scheme of the Equal Pay Act, perhaps the most significant difference between the two statutes is in the exemptions from liability provided to employers once a prima, facie case of discrimination has been made. In Kimel, the Supreme Court stated that, despite the narrowly-construed "bona fide occupational qualification" defense from liability under the ADEA, "the Act's substantive requirements nevertheless remain at a level akin to our heightened scrutiny cases under the Equal Protection Clause."

stating that where an action "could not be plausibly explained on a neutral ground, impact itself would signal that the real classification made ... was in fact not neutral"

See Gunther, 452 U.S. at 170, 101 S.Ct. 2242 (stating that “[t]he fourth affirmative defense of the Equal Pay Act ... was designed ... to confine the application of the Act to wage differentials attributable to sex discrimination”); see also Feeney, 442 U.S. at 275, 99 S.Ct. 2282 (stating that where an action “could not be plausibly explained on a neutral ground, impact itself would signal that the real classification made ... was in fact not neutral”).

stating that "[t]he fourth affirmative defense of the Equal Pay Act ... was designed ... to confine the application of the Act to wage differentials attributable to sex discrimination"


Context: . The statute does not define "homemaker services," but the court has assumed that such contributions may take many forms, including contributions to the family's food, clothing, furniture, payment of telephone bills, and household upkeep.

See Brice v. Brice, 411 A.2d 340, 343 n. 6 (D.C.1980) (evaluating the claim on the premise presented, namely, viewing such contributions "as an offset to the husband’s payments of all the bills for the house itself'); see also Campbell v. Campbell, 353 A.2d 276, 279 (D.C.1976) (contribution to maintenance of household to be taken into account in distribution of jointly owned house); 1 J.P. McCahey, Valuation and Distribution of Marital Property, 19.05[4][b], at 19-37 (1984) (discussing three common categorizations of homemaker contributions: contributions to child care, contributions which allow the other spouse to enhance his or her education or career, and contributions which result in the loss of the homemaker’s own career opportunities); Chastain, Henry & Woodside, Determination of Property Rights Upon Divorce In South Carolina: An Exploration And Recommendation, 33 S.C.L.Rev. 227, 269-70 (1981) (nature of marriage relationship may affect definition of homemaker services, contrasting provider-homemaker with marriage partnership relationship).

evaluating the claim on the premise presented, namely, viewing such contributions "as an offset to the husband's payments of all the bills for the house itself'


Context: This statement indicates that the Court of Appeals failed to recognize the significance of this Court's prior decisions refusing to adopt "public policy" exceptions to the Public Records Act. Indeed, in Holt, this Court rejected a public policy exception that bears a striking resemblance to the law enforcement privilege the Court of Appeals herein adopted.

stating that the law enforcement privilege is intended "to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation"

See Holt, 710 S.W.2d at 517; Memphis Publ’g Co. v. City of Memphis, 871 S.W.2d at 685 (describing Holt and stating that the Court rejected the public policy exception despite forceful arguments from the police department of the City of Memphis and “various amicus curiae ” that subjecting closed investigative police files to public scrutiny “would result in greater reluctance of witnesses to criminal activity to talk with authorities, and to a concomitant reduction in the effectiveness of law enforcement”); cf. United States v. Myerson, 856 F.2d 481, 484 (2d Cir.1988) (stating that the law enforcement privilege is intended “to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation”).

describing Holt and stating that the Court rejected the public policy exception despite forceful arguments from the police department of the City of Memphis and "various amicus curiae " that subjecting closed investigative police files to public scrutiny "would result in greater reluctance of witnesses to criminal activity to talk with authorities, and to a concomitant reduction in the effectiveness of law enforcement"


Context: Substantial evidence supports the agency's finding that Rosas-Grijalva failed to establish past persecution or a well-founded fear of future persecution on account of a protected ground.

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

See Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir.2009) (the REAL ID Act “requires that a protected ground represent ‘one central reason’ for an asylum applicant’s persecution”); see also Molina-Morales v. INS, 237 F.3d 1048, 1051-52 (9th Cir.2001) (personal retribution is not persecution on account of a protected ground); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir.2010) (“An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”).


"An alien's desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground."


Context: [P 20] Our decision is consistent with decisions in other cases holding a defendant is not entitled to a defense of premises instruction when the case involves a cohabitant as the alleged trespasser.

roommate did not commit the offense of criminal trespass by entering another roommate's unlocked bedroom in a house shared by multiple individuals

See State v. Hare, 575 N.W.2d 828, 832 (Minn.1998) (statute contemplates an unauthorized intrusion into the defendant’s dwelling and the defense does not apply when the defendant and victim reside in the same dwelling); State v. Warren, 147 N.H. 567, 794 A.2d 790, 793 (2002) (defense of premises statute does not apply where the assailant is a cohabitant); State v. Rambo, 401 N.J.Super. 506, 951 A.2d 1075, 1087 (2008) (defendant’s wife was not a trespasser, she was a co-owner of the property, and the trial court did not err in declining to give a jury instruction on the use of force in defense of premises); see also Crunk v. State, 934 S.W.2d 788, 794 (Tex.Crim.App.1996) (roommate did not commit the offense of criminal trespass by entering another roommate’s unlocked bedroom in a house shared by multiple individuals).

statute contemplates an unauthorized intrusion into the defendant's dwelling and the defense does not apply when the defendant and victim reside in the same dwelling


defense of premises statute does not apply where the assailant is a cohabitant


defendant's wife was not a trespasser, she was a co-owner of the property, and the trial court did not err in declining to give a jury instruction on the use of force in defense of premises


Context: No doubt 'the rumor was scandalous, but the defendants do not argue that the plaintiff could not have reported Officer Drone's sexual misconduct if he had evidence that it was true. Sexual misconduct by a prison employee on the job would be a serious infraction and, the court presumes, an infraction reportable by inmates in a grievance. Like the insolence issue, the court has found no Seventh Circuit case discussing discipline for false accusations in a grievance, but a few courts outside this Circuit have upheld such discipline, though their analyses and conclusions differ.

See Hancock v. Thalacker, 933 F.Supp. 1449, 1490 (N.D.Iowa, 1996)(proof by preponderance of evidence that grievance statements knowingly false required to impose discipline); Curry v. Hall, 839 F.Supp. 1437, 1440 (D.Or.1993)(no First Amendment right implicated by discipline for false statements in grievances; actual malice standard does not apply); see also Wolfel v. Bates, 707 F.2d 932, 934 (6th Cir.1983)(invalidating punishment for false statements in petition, but only on grounds that the officials had not found that statements false or maliciously communicated).


Context: In the past, we have expressed doubt as to whether an agreement involving less than all of a customer's purchases even falls within the ambit of Section 3.

"An agreement affecting less than all purchases does not amount to true exclusive dealing."

See Barr Labs., 978 F.2d at 110 n. 24 (“An agreement affecting less than all purchases does not amount to true exclusive dealing.”) (citation omitted); see also W. Parcel Express v. United Parcel Serv. of Am., Inc., 190 F.3d 974, 976 (9th Cir.1999) (concluding that because volume discount contracts did “not preclude consumers from using other delivery services, they [we]re not exclusive dealing contracts that preclude[d] competition”); Magnus Petroleum Co. v. Skelly Oil Co., 599 F.2d 196, 200 (7th Cir.1979) (“Because the agreements contained no exclusive dealing clause and did not require plaintiffs to purchase any amounts of gasoline that even approached their requirements, they did not violate Section 3 of the Clayton Act.”) (citations omitted).

concluding that because volume discount contracts did "not preclude consumers from using other delivery services, they [we]re not exclusive dealing contracts that preclude[d] competition"


"Because the agreements contained no exclusive dealing clause and did not require plaintiffs to purchase any amounts of gasoline that even approached their requirements, they did not violate Section 3 of the Clayton Act."


Context: Through its freeze, the IRS did what no other creditor could do: it guaranteed payment of a pre-petition debt by withholding payment of a refund owed to the debtor. In short, the IRS's freeze, open-ended in time and excessive in scope, constituted a forbidden self-help scheme which violates the automatic bankruptcy stay.

under certain circumstances, the "temporary" withholding of payment of a debt that a creditor owes to a debtor may not violate the automatic stay

See United States v. Reynolds, 764 F.2d 1004 (4th Cir.1985); see also Citizens Bank of Maryland v. Strumpf, 516 U.S. 16, 116 S.Ct. 286, 133 L.Ed.2d 258 (1995) (under certain circumstances, the “temporary” withholding of payment of a debt that a creditor owes to a debtor may not violate the automatic stay); cf. In re Tillery, 179 B.R. 576 (Bankr.W.D.Ark.1995) (IRS moved for relief from stay after imposing administrative freeze on refund).


Context: An issue exists as to whether the Plaintiff must first exhaust his administrative remedies before bringing this action. The Sixth Circuit is yet to address this question.

Kross v. Western Electric Co., 701 F.2d 1238 (7th Cir.1983) (affirming district court decision requiring Plaintiff to exhaust administrative remedies); Mason v. Continental Group, Inc., 763 F.2d 1219 (11th Cir. 1985) cert. denied 474 U.S. 1087, 106 S.Ct. 863, 88 L.Ed.2d 902 (1986) (requiring exhaustion for claims grounded in statutory provisions of ERISA); but see Zipf v. American Tel. and Tel. Co., 799 F.2d 889 (3d Cir.1986) (holding that section 510 of ERISA mandates interpretation of the statute and should be done by federal courts); Amaro v. Continental Can Co., 724 F.2d 747 (9th Cir.1984) (holding exhaustion of administrative remedies not required prior to bringing statutory claim under ERISA); Curry v. Contract Fab.


holding exhaustion of administrative remedies not required prior to bringing statutory claim under ERISA


requiring exhaustion for claims grounded in statutory provisions of ERISA


Context: The Board has jurisdiction over appeals from certain agency personnel decisions pursuant to 5 U.S.C. SS 7701(a), which provides that "an employee ... may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation." This makes a petitioner's status as an "employee" a prerequisite to having a right of appeal and to Board jurisdiction.

holding that as an individual with a probationary position in the competitive service, the petitioner was not an "employee" and, therefore, the Board had no jurisdiction at all over her appeal

See Pervez v. Dep’t of the Navy, 193 F.3d 1371 (Fed.Cir.1999) (holding that as an individual with a probationary position in the competitive service, the petitioner was not an “employee” and, therefore, the Board had no jurisdiction at all over her appeal).

holding that the petitioner was not entitled to the protections of 5 U.S.C. SSSS 7511(a

Specifically, under 5 U.S.C. §§ 7511-7513, for purposes of appealing a removal action, a petitioner must be included in one of several possible categories in order to meet the definition of “employee.” As a preference eligible individual in the excepted service who had completed less than one year of current continuous service, Vernon is not covered by any of the categories in § 7511(a)(1). Vernon is, thus, not an “employee” under § 7511 and he has no right to appeal. See Horner v. Lucas, 832 F.2d 596 (Fed.Cir.1987) (holding that the petitioner was not entitled to the protections of 5 U.S.C. §§ 7511(a)(1) and 7513 because under § 7511(a)(1)(A) the temporary status of his position in the competitive service prevented him from qualifying as an employee). The Board correctly concluded that it had no jurisdiction to reach the merits of any of Vernon’s claims, including both the claims under the Fifth and Fourteenth Amendments and the claims based on collective bargaining agreements.


Context: Moreover, we affirm the district court's sua sponte dismissal of the indemnity claim because the underlying action plainly is not covered by the policy in light of these two coverage exclusions. As we have been informed that the underlying action has settled, there is no further information to be gleaned that could give rise to a duty to indemnify under this policy.

See Ledford v. Gutoski, 319 Or. 397, 877 P.2d 80, 84 (1994) (noting that, where an insurer does not have a duty to defend based on the facts alleged in the complaint, it may still be possible to demonstrate a duty to indemnify based on the facts proven at trial); see also Weber v. Chicago Title Ins. Co. of Oregon, 169 Or.App. 24, 7 P.3d 714, 716 (2000) (noting that an insurer’s duty to defend generally is broader than its duty to indemnify).

noting that an insurer's duty to defend generally is broader than its duty to indemnify


Context: . In addition, on plain error review, the Ninth Circuit has noted, without deciding, that the plain language of Subsection 3(B) "would seemingly apply to the facts of this case because it contemplates using a computer to entice or solicit a third party -- the 'person'-- to engage in prohibited sexual conduct with the minor" while application note 4 "indicates, ... that SS 2G1.3(b)(3) would not apply to the facts of this case because the computer was not used to communicate directly with the minor or her custodian."

United States v. Jackson, 697 F.3d 1141, 1145 (9th Cir.2012) (declining to decide whether the plain language is inconsistent with the application note and upholding the enhancement on the ground that the district court did not commit plain error); see also United States v. Madkins, 390 Fed.Appx. 849, 852 (11th Cir.2010) (acknowledging that a "persuasive case has been made that the commentary [of application note 4] is at odds with the plain language of the [Subsection 3(B) ] enhancement” but declining to reach the issue on plain error review).


Context: Similarly, in the context of accounting malpractice, the Texas Supreme Court held that a cause of action for' negligence based on the accountant's use of the cash instead of the accrual method of accounting for tax purposes did not accrue until the Internal Revenue Service had assessed a tax deficiency.

Atkins v. Crosland, 417 S.W.2d 150, 158 (Tex.1967) (holding that cause of action for malpractice “did not arise until the tax deficiency was assessed” because “[p]rior to assessment the plaintiff had not been injured.”); see also Street v. Honorable Second Court of Appeals, 756 S.W.2d 299, 302 (Tex.1988) (liability in Stowers action accrued when final judgment was rendered in underlying suit regardless of pending appeals because final judgment placed insured at risk for paying it).

holding that cause of action for malpractice "did not arise until the tax deficiency was assessed" because "[p]rior to assessment the plaintiff had not been injured."


Context: This circuit's precedents adopting the Cohan rule, however, are clear that the rule does not obviate the need for some proof of entitlement to a deduction in the first place. The finding of the Tax Court that Sparkman failed to establish such an entitlement eliminates the requirement that the Tax Court estimate what those losses were.

summarizing Cohan as standing for the proposition that "a court should allow the taxpayer some deductions if the taxpayer proves he is entitled to the deduction but cannot establish the full amount claimed" (emphasis added

See Edelson v. Comm’r, 829 F.2d 828, 831 (9th Cir.1987) (summarizing Cohan as standing for the proposition that “a court should allow the taxpayer some deductions if the taxpayer proves he is entitled to the deduction but cannot establish the full amount claimed” (emphasis added)); see also Norgaard v. Comm’r, 939 F.2d 874, 879 (9th Cir.1991) (noting that, under the Cohan rule, the trial court “may not be compelled to guess or estimate ... even though such an estimate, if made, might have been affirmed”).

noting that, under the Cohan rule, the trial court "may not be compelled to guess or estimate ... even though such an estimate, if made, might have been affirmed"


Context: Competing movants maintain that groups formed for the purposes of amassing the largest losses should not be considered to have the largest financial interest because these groups epitomize the type of lawyer-driven litigation reviled by the PSLRA.

refusing to designate a movant group of three individuals lead plaintiff because "their decision making requires either (a) levels of coordination, negotiation, and collective action which far exceed that which would be necessary of an individual litigant or (b

In re Telxon Corp. Sec. Litig., 67 F.Supp.2d 803, 815-16 (N.D.Ohio 1999) (denying lead plaintiff status to the Alsin Group, which contained eighteen investors who had no relation to one another, and deeming such an amalgamation of random people “inconsistent with the definition of group intended by the PSLRA, as revealed by the statute’s language, context, overall scheme, and purpose”); see also Crawford v. Onyx Software Corp., No. C01-1346L, 2002 WL 356760, at *2 (W-D.Wash. Jan.10, 2002) (refusing to designate a movant group of three individuals lead plaintiff because “their decision making requires either (a) levels of coordination, negotiation, and collective action which far exceed that which would be necessary of an individual litigant or (b) undue control by their lawyer-representatives”).

denying lead plaintiff status to the Alsin Group, which contained eighteen investors who had no relation to one another, and deeming such an amalgamation of random people "inconsistent with the definition of group intended by the PSLRA, as revealed by the statute's language, context, overall scheme, and purpose"


Context: This court previously determined that the circumstances under which a narcotics search warrant is executed implicate a unique risk to police officers, and opined that "[t]he fact that the premises were being searched under a warrant for heroin, a very dangerous drug, gave [the police officer] the knowledge that dangerous people, who commonly carried weapons, were involved."

"Narcotics investigations are fraught with dangers and the officers had a right and duty to check [a person arriving on the premises] for weapons to protect themselves and others * * *."

State v. Bitterman, 304 Minn. 481, 485, 232 N.W.2d 91, 94 (1975) (upholding a Terry search of a person who arrived at an apartment that was being searched for narcotics); see also Johantgen v. Com., 571 S.W.2d 110, 112 (Ky.Ct.App.1978) (“Narcotics investigations are fraught with dangers and the officers had a right and duty to check [a person arriving on the premises] for weapons to protect themselves and others * * *.”). The majority attempts to distinguish Bitterman by stating that somehow officers “knew” that the circumstances of that drug search were more dangerous than the circumstances here.


Context: Finally, comparison to other statutes and judicial decisions supports the interpretation we adopt today. Congress has often explicitly included a required mental state in other hoax statutes.

holding that the crime of "knowingly and willfully" threatening the President required only that the threat be made under circumstances where "a reasonable person would foresee that the statement would be interpreted by those to whom" it is addressed as a serious threat and not be the result of mistake, duress or coercion

See Roy v. United States, 416 F.2d 874, 877-78 (9th Cir.1969) (holding that the crime of “knowingly and willfully” threatening the President required only that the threat be made under circumstances where “a reasonable person would foresee that the statement would be interpreted by those to whom” it is addressed as a serious threat and not be the result of mistake, duress or coercion); see also United States v. Hanna, 293 F.3d 1080, 1084-85 (9th Cir.2002) (applying objective reasonableness standard to presidential threat statute, 18 U.S.C. § 871, and re-affirming Roy).

applying objective reasonableness standard to presidential threat statute, 18 U.S.C. SS 871, and re-affirming Roy


Context: Surely Congress did not intend to duplicate section 844(h)(1) with section 844(i). Instead, section 844(h)(1) applies to anyone who uses fire to commit any felony and is not limited just to arson cases.

noting that courts should have " 'a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment' "

See Freytag v. C.I.R., — U.S. —, -, 111 S.Ct. 2631, 2638, 115 L.Ed.2d 764 (1991) (noting that courts should have “ ‘a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment’ ”); see also United States v. Roy, 830 F.2d 628, 634 (7th Cir.1987) (stating that in construing a legislative enactment, “we presume that the legislature intended that each section was a necessary component of the statutory scheme and not surplusage”), cert. denied, 484 U.S. 1068, 108 S.Ct. 1033, 98 L.Ed.2d 997 (1988).

stating that in construing a legislative enactment, "we presume that the legislature intended that each section was a necessary component of the statutory scheme and not surplusage"


Context: Accordingly, the terms of Settlement Agreement I unambiguously evidence a mutual agreement to terminate the lease on November 30, 2000, effectuating a legal surrender of the leasehold interest and cancel-ling all covenants thereunder.

requiring a "mutual agreement between the pax*ties" to extinguish the leasehold interest

See Beall, 94 U.S. at 389 (requiring a “mutual agreement between the pax*ties” to extinguish the leasehold interest); see also Checkers, Simon & Rosner, 864 F.2d at 1346 (stating that surrender requires “an agreement ... whereby the lessee surrendered the premises and the lessor accepted the premises back, both intending thereby to terminate the lease and cancel all the covenants and obligations thereunder.”) (emphasis added and citation omitted).

stating that surrender requires "an agreement ... whereby the lessee surrendered the premises and the lessor accepted the premises back, both intending thereby to terminate the lease and cancel all the covenants and obligations thereunder."


Context: "[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habe-as corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Despite having had every opportunity raise his Fourth Amendment claim at the trial and appellate level, as well as through his two CPL 440 motions, Petitioner only raises it for the first time here.

See Gates v. Henderson, 568 F.2d 830, 840 (2d Cir.1977) (noting that petitioner had full and fair opportunity to raise claim in state court, on appeal, and through coram nobis procedure); see also Graham v. Costello, 299 F.3d 129, 134 (2d Cir.2002) (“[0]nce it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the states procedure) ... the claim will never present a valid basis for federal habeas relief.”).

"[0]nce it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the states procedure


Context: Based on our recent precedents, admission of those statements as lay opinion testimony was error. However, the District Court later qualified Agent Sparks as an expert in the investigation of drug trafficking based on his "training and experience on hundreds of investigations." Aug. 13, 2001 Trial Tr. at 17649. Because Agent Sparks would have qualified as an expert for purposes of the challenged testimony, there was no prejudice from that particular error.

agent's improper lay testimony was harmless error where agent would have qualified as an expert

See Moore, 651 F.3d at 61 (that Agent Sparks “might have qualified as an expert” ameliorated prejudice from improper opinion testimony); see also United States v. Smith, 640 F.3d 358, 366 (D.C.Cir.2011) (agent’s improper lay testimony was harmless error where agent would have qualified as an expert).

that Agent Sparks "might have qualified as an expert" ameliorated prejudice from improper opinion testimony


Context: The BAP properly affirmed the bankruptcy court's order granting the trustee's surcharge motion because the surcharge was calculated to compensate the estate for the actual monetary costs imposed by the debtor's misconduct, and was warranted to protect the integrity of the bankruptcy process.

a surcharge should be calculated to compensate the estate for the actual monetary costs imposed by the debtor's misconduct

See Latman, 366 F.3d at 786 (recognizing inherent power of bankruptcy courts to equitably surcharge a debtor’s exemption to protect integrity of the bankruptcy process and to ensure that debtor does not exempt amount greater than allowed under Bankruptcy Code); see also Onubah v. Zamora (In re Onubah), 375 B.R. 549, 556 (9th Cir.BAP2007) (a surcharge should be calculated to compensate the estate for the actual monetary costs imposed by the debtor’s misconduct).

recognizing inherent power of bankruptcy courts to equitably surcharge a debtor's exemption to protect integrity of the bankruptcy process and to ensure that debtor does not exempt amount greater than allowed under Bankruptcy Code


Context: "Endnote i," however, reads: "Until the Plaintiff's discovery requests regarding the appropriate collection manuals are fulfilled, the Plaintiff is unable to identify to the Court the precise regulations." (emphasis added). Even assuming that the IRS failed to follow procedures contained in the Internal Revenue Manual, it cannot be the basis for a claim under Section 7433.

failure to follow guidelines in IRS manuals does not constitute a violation of a provision or regulation of the Tax Code and is not actionable under SS 7433

See, e.g., Gonsalves v. IRS, 975 F.2d 13, 16 (1st Cir.1992) (§ 7433 does not permit taxpayers to sue the government for violations of internal IRS policies like those in the Internal Revenue Manual); see also Kachougian v. United States, No. C.A. 96-508T, 1998 WL 233750 at *2 (D.R.I. 1998) (failure to follow guidelines in IRS manuals does not constitute a violation of a provision or regulation of the Tax Code and is not actionable under § 7433). In any event, a complaint cannot be cured by a memorandum of law in opposition to a motion to dismiss. See Natale v. Town of Darien, No. Civ. 3:97cv583 (AHN), 1998 WL 91073 at *4, n. 2 (D.Conn.1998) (plaintiff may not amend complaint in a memorandum of law), citing Daury v. Smith, 842 F.2d 9, 15-16 (1st Cir.1988); see also Hartford Fire Ins. Co. v. Federated Dep't Stores, Inc., 723 F.Supp. 976, 987 (S.D.N.Y.1989) (same).

SS 7433 does not permit taxpayers to sue the government for violations of internal IRS policies like those in the Internal Revenue Manual


Context: It is true that the interference here was greater than that in Morrison, for in Morrison, the defendant reported directly and immediately to her attorney about the government's conduct and did not say anything incriminating. Even so, Morrison requires that a defendant point to specific ways in which his trial was compromised.

requiring a showing of "demonstrable prejudice, or substantial threat thereof"

See id. at 365, 101 S.Ct. at 668 (requiring a showing of “demonstrable prejudice, or substantial threat thereof”); see also United States v. Killian, 639 F.2d 206, 210 (5th Cir.Unit A Mar.1981) (no prejudice shown where statements obtained without counsel were not used at trial), cert. denied, 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 394 (1981).


Context: First, while Defendant asserts a lack of jurisdiction, Defendant fails to cite any authority demonstrating why the Indictment on its face does not invoke the criminal jurisdiction of the United States.

reversing district court's dismissal, after a pretrial hearing, based on diplomatic immunity, of indictment charging defendant with espionage for lack of jurisdiction over defendant, because defendant, who had served as assistant commercial counselor in Bulgaria's New York City trade office failed to establish he was a member of the Bulgaria mission entitled to such diplomatic immunity

See, e.g., Ex parte Crow Dog, 109 U.S. 556, 568, 3 S.Ct. 396, 27 L.Ed. 1030 (1883) (holding federal government could not prosecute an American Indian who, on Indian territory, had murdered another member of his tribe, as federal statute excluded such crime from federal criminal jurisdiction in favor of allowing the Indians to engage in self-government, i.e., “the regulation by themselves of their own domestic affairs, the maintenance of order and peace among their own members by the administration of their own laws and customs”); See also United States v. Kostadinov, 734 F.2d 905, 913 (2d Cir.) (reversing district court’s dismissal, after a pretrial hearing, based on diplomatic immunity, of indictment charging defendant with espionage for lack of jurisdiction over defendant, because defendant, who had served as assistant commercial counselor in Bulgaria’s New York City trade office failed to establish he was a member of the Bulgaria mission entitled to such diplomatic immunity), cert. denied, 469 U.S. 881, 105 S.Ct. 246, 83 L.Ed.2d 184 (1984).

holding federal government could not prosecute an American Indian who, on Indian territory, had murdered another member of his tribe, as federal statute excluded such crime from federal criminal jurisdiction in favor of allowing the Indians to engage in self-government, i.e., "the regulation by themselves of their own domestic affairs, the maintenance of order and peace among their own members by the administration of their own laws and customs"


Context: However, this would produce an absurd result that is clearly contrary to the objectives of the juvenile justice system. Hence, such a construction also would violate a well-established rule of statutory construction.

"we must be mindful of the effects of our interpretation and should avoid statutory constructions that lead to absurd results"

See People v. Haghshenas, 31 P.3d 180, 182 (Colo.App.2001) (“we must be mindful of the effects of our interpretation and should avoid statutory constructions that lead to absurd results”); see also People v. Wortham, 928 P.2d 771, 774 (Colo.App.1996) (although trial court’s noneompliance with mandatory deadlines in special sentencing statute deprived court of authority to impose sentence pursuant to that statute, the noncompliance did not result in a divestiture of jurisdiction).

although trial court's noneompliance with mandatory deadlines in special sentencing statute deprived court of authority to impose sentence pursuant to that statute, the noncompliance did not result in a divestiture of jurisdiction


Context: When we grant a prisoner like Bryant relief under the savings clause for an argument that he is legally innocent of his sentence and not actually innocent of his offense, we sidestep the clear command of Congress. To file a second or successive motion based on actual innocence, the prisoner must have "newly discovered evidence" proving that "no reasonable factfin- der would have found [him] guilty of the offense." 28 U.S.C. SS 2255(h)(1). A decision by the Supreme Court is not "newly discovered evidence." Nor is a prisoner actually innocent of his "offense" if all he can establish is legal innocence of his sentence.

"A sentence is not a conviction for an 'underlying offense.'"

See Williams, 713 F.3d at 1346 (“[H]e is asserting only legal innocence: that his burglary convictions should not have been considered violent felonies under the [Armed Career Criminal Act].”); McKay v. United States, 657 F.3d 1190, 1199 (11th Cir.2011) (“McKay does not even suggest, because he cannot, that he did not actually commit the crime of carrying a concealed weapon.”); see also In re Hill, 715 F.3d 284, 296 (11th Cir.2013) (“A sentence is not a conviction for an ‘underlying offense.’”).

"[H]e is asserting only legal innocence: that his burglary convictions should not have been considered violent felonies under the [Armed Career Criminal Act]."


"McKay does not even suggest, because he cannot, that he did not actually commit the crime of carrying a concealed weapon."


Context: The reasoning underlying Monessen was that prejudgment interest is a part of damages, which are "inseparably connected with the right of action" under FELA.

distinguishing prejudgment interest, which is "directly proportional to the magnitude of damages sustained by the claimant," from costs and disbursements, which "are not part of the claim for compensation of personal injury"

See Lienhard v. State, 431 N.W.2d 861, 864-65 (Minn.1988) (distinguishing prejudgment interest, which is “directly proportional to the magnitude of damages sustained by the claimant,” from costs and disbursements, which “are not part of the claim for compensation of personal injury”); see also State ex rel. Burnquist v. Miller Home Dev., 243 Minn. 1, 7, 65 N.W.2d 900, 904 (1954) (holding that “costs and disbursements” are a “procedural element” separate from the concept of “just compensation” under the Minnesota Constitution)."

holding that "costs and disbursements" are a "procedural element" separate from the concept of "just compensation" under the Minnesota Constitution


Context: However, if the principal authorized the agent's acts, or otherwise acquiesced in or ratified such acts, the agent will not be held liable to the principal for the losses resulting from those acts.

explaining that "as between agent and principal, an agent cannot be held liable for the use of the principal's property in an unlawful manner when it is reasonable to infer that the principal authorized the agent's conduct"

See, McNamara v. Johnston, 522 F.2d 1157, 1165 (7th Cir. 1975) (explaining that “as between agent and principal, an agent cannot be held liable for the use of the principal’s property in an unlawful manner when it is reasonable to infer that the principal authorized the agent’s conduct”); Olson v. Thompson, 273 Minn. 152, 140 N.W.2d 321 (1966) (stating that although the actions of the agent constituted a tort, the agent is not liable to the principal for damages arising from such actions because the agent was acting in accordance with the principal’s instructions); Gutting v. Jacobson, 184 Neb. 402, 167 N.W.2d 762 (1969) (stating that an agent is liable to the principal for violations of the agent’s fiduciary duties, but that a principal may by acquiescence release the agent from such liability); Kidd v. Maldonado, 688 P.2d 461 (Utah 1984) (finding that although the agent completed an earnest money agreement contrary to the principal-seller’s instructions, the seller ratified the agent’s acts when the seller read and signed the agreement); Restatement, supra, § 401, comment d.

holding that a principal does not have an action against his agent for indemnification based on the agent's misrepresentations because the principal was not "blameless" in the misrepresentations made to the third parties

Cf., Putnam v. DeRosa, 963 F.2d 480 (1st Cir. 1992) (holding that a principal does not have an action against his agent for indemnification based on the agent’s misrepresentations because the principal was not “blameless” in the misrepresentations made to the third parties); Warner v. Reagan Buick, 240 Neb. 668, 483 N.W.2d 764 (1992); City of Wood River v. Geer-Melkus Constr. Co., 233 Neb. 179, 444 N.W.2d 305 (1989) (discussing indemnification actions and stating that a party seeking indemnification must have been free from any wrongdoing); Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc., 232 Neb. 763, 443 N.W.2d 872 (1989); Restatement, supra, § 411, comments c. and d. (stating that if both the principal and the agent are aware that the performance of an act is wrongful, ordinarily the agent is not liable to indemnify the principal for damages arising from the performance of that act).


discussing indemnification actions and stating that a party seeking indemnification must have been free from any wrongdoing


stating that although the actions of the agent constituted a tort, the agent is not liable to the principal for damages arising from such actions because the agent was acting in accordance with the principal's instructions


stating that an agent is liable to the principal for violations of the agent's fiduciary duties, but that a principal may by acquiescence release the agent from such liability


finding that although the agent completed an earnest money agreement contrary to the principal-seller's instructions, the seller ratified the agent's acts when the seller read and signed the agreement


Context: The purpose of the analysis is to balance the interests of the nations whose law might apply.

"to avoid or resolve conflicts between competing laws by ascertaining and valuing points of contact between the transaction and the states or governments whose com1 peting laws are involved"

See 345 U.S. at 582, 73 S.Ct. at 928 (“to avoid or resolve conflicts between competing laws by ascertaining and valuing points of contact between the transaction and the states or governments whose com1 peting laws are involved”); see also Phillips, 632 F.2d at 86 (“Lauritzen requires that we compare the substantiality of our interest in a given transaction with that of other nations.”).

"Lauritzen requires that we compare the substantiality of our interest in a given transaction with that of other nations."


Context: Thus, while we disagree with the trial court's assessment of the applicability of subsection (a)(5) and, for the same reason, (a)(8) , for the reasons discussed below, we find termination is appropriate under subsection (a)(1). We may, of course, affirm the trial court on grounds other than those specified in its opinion.

See Weber v. Lynch, 237 Pa.Super. 48, 346 A.2d 363, 366 n. 6 (1975) (noting that we may uphold a decision below if there exists any proper basis for the result reached), aff'd, 473 Pa. 599, 375 A.2d 1278 (1977); In re Damon B., 314 Pa.Super. 391, 460 A.2d 1196, 1198 (1983) (affirming visitation order on grounds other than those relied on by trial court); cf. In re F.L.D., 317 Pa.Super. 473, 464 A.2d 419, 422-23 (1983) (affirming termination order on one set of grounds despite asserted constitutional infirmity on other grounds).