Context: Under these circumstances a reasonable person would not have believed he was free "to disregard the police and go about his business." Canales was, therefore, detained.

where police officer in marked vehicle blocked driveway as defendant attempted to back out, officer "provided [defendant] with no reasonable alternative except an encounter with the police"

See Rogers, 186 Ariz. at 510-11, 924 P.2d at 1029-30 (defendant detained when officers approached on foot, displayed badge, and said, “we need to talk to you”); see also United States v. Kerr, 817 F.2d 1384, 1386-87 (9th Cir.1987) (where police officer in marked vehicle blocked driveway as defendant attempted to back out, officer “provided [defendant] with no reasonable alternative except an encounter with the police”); People v. Cascio, 932 P.2d 1381, 1387 (Colo.1997) (noting courts have found detention exists when police car “wholly blocks the defendant’s ability to leave”); Riley v. State, 892 A.2d 370, 374 (Del.2006) (detention occurred when police approached vehicle with badges and flashlights, after parking their vehicle in such a way as to prevent defendant from driving away); State v. Jestice, 177 Vt. 513, 861 A.2d 1060, 1062-63 (2004) (defendant detained where defendant would have had to back up and maneuver around police car and officer to exit parking lot and officer shined headlights into vehicle); McChesney v. State, 988 P.2d 1071, 1075 (Wyo.1999) (noting use of police ear to block defendant’s car has been found to constitute seizure).

defendant detained when officers approached on foot, displayed badge, and said, "we need to talk to you"


noting courts have found detention exists when police car "wholly blocks the defendant's ability to leave"


detention occurred when police approached vehicle with badges and flashlights, after parking their vehicle in such a way as to prevent defendant from driving away


defendant detained where defendant would have had to back up and maneuver around police car and officer to exit parking lot and officer shined headlights into vehicle


noting use of police ear to block defendant's car has been found to constitute seizure


Context: Despite McNemar's shortcomings, at least one circuit has indicated a willingness to adopt the Third Circuit's approach, albeit not applying the doctrine of judicial estoppel per se.

applying judicial estoppel in an age discrimination case, but specifically stating that the applicability of judicial estoppel to ADA cases will be "left for another day"

See Kennedy v. Applause, Inc., 90 F.3d 1477, 1481-82 (9th Cir.1996) (holding, without applying the doctrine of judicial estoppel, that the plaintiff, who made sworn statements of total disability in a social security disability application and then testified at her deposition that she was not totally disabled, failed to raise a genuine issue of material fact as to whether she was a qualified individual with a disability within the meaning of the ADA); see also Simon v. Safelite Glass Corp., 128 F.3d 68, 74 (2d Cir.1997) (applying judicial estoppel in an age discrimination case, but specifically stating that the applicability of judicial estoppel to ADA cases will be “left for another day”).


Context: Robinson's trial predated Deck and, under the AEDPA, state courts are only held to laws clearly established by the Supreme Court at the time of the alleged violation. However, the Deck Court was clear that the constitutional ban on routine shackling, at least during the guilt phase of the trial, had been long-established.

a state defendant "may not normally be forced to appear in court in shackles"

See Deck, 125 S.Ct. at 2010 (“The answer is clear: The law has long forbidden routine use of visible shackles during the guilt phase.”); see also McKaskle v. Wiggins, 465 U.S. 168, 188, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (a state defendant “may not normally be forced to appear in court in shackles”) (citing Estelle v. Williams, 425 U.S. 501, 504-05, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976)); Lakin v. Stine, 431 F.3d 959, 963 (6th Cir.2005) (“[T]he principle that shackling a defendant at trial without the individualized determination as to necessity violates the due process clause was clearly established long before Deck was decided.”).

"The answer is clear: The law has long forbidden routine use of visible shackles during the guilt phase."


"[T]he principle that shackling a defendant at trial without the individualized determination as to necessity violates the due process clause was clearly established long before Deck was decided."


Context: We wonder what jury would not reach that conclusion. Moreover, the jury could have inferred solely from the possession of this large quantity of drugs that Defendant intended to further distribute it.

recovery of $1,900 from the defendant's pocket supported conclusion that the defendant was selling drugs

See United States v. Wilson, 27 F.3d 1126, 1133 (6th Cir.1994) (recognizing “the connection between guns and drug trafficking”); United States v. Collier, 246 Fed.Appx. 321, 330 (6th Cir. 2007) (recovery of $1,900 from the defendant’s pocket supported conclusion that the defendant was selling drugs).

United States v. Haywood, 280 F.3d 715, 724 (6th Cir.2002) (18 grams of crack cocaine sufficient for an inference of intent to distribute); United States v. Clemons, 9 Fed. Appx. 286, 289 (6th Cir.2001) (8.5 grams of crack cocaine “was large enough to draw an inference of intent to distribute”). In addition, Investigator Bryant testified that firearms were recovered nearby the drugs, $1,008 was recovered from the bedroom, and no drug paraphernalia to use the crack was recovered.


8.5 grams of crack cocaine "was large enough to draw an inference of intent to distribute"


Context: For this reason, the court to date has allowed Plaintiffs to add 15 other plaintiffs to this action. First Am. Compl. PP 5-19. The record, however, does not establish that joinder of the remaining potential plaintiffs in this case is impracticable. As the Government observed, the United States Court of Federal Claims and its predecessor frequently have managed cases with large numbers of claimants without the need to resort to class action.

Jaynes, 69 Fed.Cl. at 454-55 (holding that a potential class of 256 members did not satisfy numerosity); see also Buchan, 27 Fed.Cl. at 224 (“This court, however, has never had difficulty dealing with hundreds of party plaintiffs or with single plaintiff ‘test’ cases.”); O’Hanlon v. United States, 7 Cl.Ct. 204, 206-207 (1985) (holding joinder appropriate for 39 potential plaintiffs.)

"This court, however, has never had difficulty dealing with hundreds of party plaintiffs or with single plaintiff 'test' cases."


Context: Checkers's position amounts to an argument that section 362(a) disabled it from taking any action to fend off CRG's attempts to cancel Checkers's service mark registration. However, it is well settled in this circuit and others that the section 362(a) automatic stay does not require persons involved in litigation with a debtor to capitulate to the debt- or's every demand.

"Fulfillment of th[e] purpose [of the automatic stay] cannot require that every party who acts in resistance to the debtor's view of its rights violates SS 362(a

See Inslaw, 932 F.2d at 1473 (“Fulfillment of th[e] purpose [of the automatic stay] cannot require that every party who acts in resistance to the debtor’s view of its rights violates § 362(a) if found in error by the bankruptcy court.”); see also In re Merrick, 175 B.R. 333, 338 (Bankr. 9th Cir.1994) (“The automatic stay should not tie the hands of a defendant while the plaintiff debtor is given free rein to litigate.”); Martin-Trigona, 892 F.2d at 577 (“There is ... no policy of preventing persons whom the bankrupt has sued from protecting their legal rights.”).

"The automatic stay should not tie the hands of a defendant while the plaintiff debtor is given free rein to litigate."


"There is ... no policy of preventing persons whom the bankrupt has sued from protecting their legal rights."


Context: As defendant acknowledges, we have never concluded that drawing an analogy between a defense tactic and "smoke" is inherently prejudicial, and we have not reversed based on such a statement alone.

approving prosecutor's colorful analogy of defense theory to the Wizard of Oz

See State v. Rodriguez, 269 Kan. 633, 643-45, 8 P.3d 712 (2000) (prosecutor’s comments in arson case, which involved burning a dog, to effect that defense counsel had attempted to divert jury’s attention by arguing State did not know who dog’s owner was, labeling of tactic was “puff of smoke” not prosecutorial misconduct; comments not beyond bounds of legitimate rhetoric; puff of smoke argument responsive to defense counsel’s strained interpretation of evidence regarding defendant’s beliefs about who, if anyone, owned dog); State v. McCray, 267 Kan. 339, 348-51, 979 P.2d 134 (1999) (prosecutor’s “smoke screen” statement made in course of more egregious comments insinuating defense counsel’s “deception” was attempt to “fool,” “intimidare],” and “scare” jury; remarks outside bounds of proper argument but little likelihood they changed result); State v. Duke, 256 Kan. 703, 718-20, 887 P.2d 110 (1994) (prosecutor called defense closing argument “a lot of smoke,” said “[i]t’s smoke and mirrors . . . trying to confuse you“; no intent to mislead and within permissible bounds of rhetoric); State v. Baker, 249 Kan. 431, 447, 819 P.2d 1173 (1991) (prosecutor argued defendant’s “nice boy image . . . [was] nonexistent,” “[i]t’s a smoke screen“; statements not gross nor flagrant, did not deprive defendant of fair trial); City of Dodge City v. Ingram, 33 Kan. App. 2d 829, 837-38, 109 P.3d 1272 (2005) (prosecutor’s comments that defense “simply arguing smoke and mir rors” and “[g]rasping at straws,” not improper, not outside wide latitude allowed in discussing evidence); State v. Lockhart, 24 Kan. App. 2d 488, 490-93, 947 P.2d 461, rev. denied 263 Kan. 889 (1997) (prosecutor s “smoke screen” argument noted but not found improper; basis for reversal in prosecutor’s references to defendant and defense counsel as liars); see also State v. Anthony, 282 Kan. 201, 210-12, 145 P.3d 1 (2006) (approving prosecutor’s colorful analogy of defense theory to the Wizard of Oz); State v. Collier, No. 93,589, unpublished Court of Appeals opinion filed March 31, 2006, rev. denied 282 Kan. 792 (2006), slip op. at 8-9 (simple “smoke and mirrors” comments not considered prosecutorial misconduct; even if improper, no prejudice).

prosecutor's comments that defense "simply arguing smoke and mir rors" and "[g]rasping at straws," not improper, not outside wide latitude allowed in discussing evidence


Context: . Lacour also argues that the court should apply the rule of lenity because Congress' intent is not clear as to sentencing under SS 841(b)(1)(C). Because a reading of the Guidelines and statutory sections removes any potential ambiguity, we decline to invoke the rule of lenity here.

"There is no ambiguity upon which the rule of lenity can operate"

See Chapman, 500 U.S. at 463, 111 S.Ct. at 1926 ("The rule of lenity, however, is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of [a congressional act] ... ”); see also United States v. Nelson, 29 F.3d 261, 264 (7th Cir.1994); Crowell, 9 F.3d at 1455 ("There is no ambiguity upon which the rule of lenity can operate”).

"The rule of lenity, however, is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of [a congressional act] ... "


Context: Neither the affiant nor the informant reported having witnessed a drug transaction in the residence or a drug transaction involving anyone who was there or resided there. The affidavit contains no statement which asserts that anyone saw drugs in the residence or on a person at the residence.

holding that the "affidavit gave absolutely no indication that the fruits of criminal activity would probably be found at that location, rendering [the officer's] belief in probable cause, based solely on the affidavit, objectively unreasonable "

See Janis v. Commonwealth, 22 Va.App. 646, 653-54, 472 S.E.2d 649, 653 (1996) (holding that the “affidavit gave absolutely no indication that the fruits of criminal activity would probably be found at that location, rendering [the officer’s] belief in probable cause, based solely on the affidavit, objectively unreasonable ”), aff'd en banc, 23 Va.App. 696, 479 S.E.2d 534 (1996); see also Atkins, 9 Va.App. at 464, 389 S.E.2d at 180 (holding that evidence was admissible under the good faith exception where the affidavit contained “a detailed description of the nature of the offense, the premises to be searched, the items for which they were searching, and the transaction which led the informant to believe that the drugs would be in this apartment”).

holding that evidence was admissible under the good faith exception where the affidavit contained "a detailed description of the nature of the offense, the premises to be searched, the items for which they were searching, and the transaction which led the informant to believe that the drugs would be in this apartment"


Context: Notwithstanding Defendants' oral assertions they are not waiving counsel, but see Memoranda at 1 (wherein each Defendant states "this Defendant now makes this [his/her] knowing and intelligent waiver of the right to be represented by counsel and asserts [his/her] right to waive the right to counsel and to proceed Pro Se"), the Court concludes Defendants have at this point knowingly, voluntarily, and intelligently waived their right to counsel and invoked their right to self-representation. It is also noted either may later waive the right to proceed pro se, either explicitly or by their conduct.

"Even if defendant requests to represent himself, however, the right may be waived through defendant's subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether."

See Brown, 665 F.2d at 611 (“Even if defendant requests to represent himself, however, the right may be waived through defendant’s subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether.”); see also Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525 (“[T] he trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.”).

"[T] he trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct."


Context: Prosecutors and witnesses both enjoy absolute immunity at common law.

ruling that witnesses, including police officer-witnesses, are entitled to absolute immunity from SS 1983 liability

See Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (ruling that witnesses, including police officer-witnesses, are entitled to absolute immunity from § 1983 liability); Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (holding that the considerations underlying absolute prosecutorial immunity at common law “dictate the same absolute immunity under § 1983”). Absolute immunity even applies to those who prosecute and appear as witnesses in the course of an adjudication before an administrative agency.

Cf. Butz v. Economou, 438 U.S. 478, 515-17, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (concluding that agency officials performing functions analogous to those of a prosecutor are entitled to absolute immunity with respect to such acts).


holding that the considerations underlying absolute prosecutorial immunity at common law "dictate the same absolute immunity under SS 1983"


Context: For purposes of this provision, the definition of "firearm" includes a shotgun with a barrel less than eighteen inches in length or with an overall length less than twenty-six inches. 26 U.S.C. SS 5845(a). In order to obtain a conviction under SS 5861(d), the government must demonstrate that the defendant knew the barrel's length was less than eighteen inches or the overall length was less than twenty-six inches.

holding that the government must prove the defendant "knew of the features of [the firearm] that brought it within the scope of the Act"

See Staples v. United States, 511 U.S. 600, 619, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (holding that the government must prove the defendant “knew of the features of [the firearm] that brought it within the scope of the Act”); see also United States v. Michel, 446 F.3d 1122, 1130 (10th Cir.2006) (stating that the government is “required to prove beyond a reasonable doubt that [the defendant] knew the firearm in his possession had a barrel shorter than eighteen inches”).

stating that the government is "required to prove beyond a reasonable doubt that [the defendant] knew the firearm in his possession had a barrel shorter than eighteen inches"


Context: The idea of having a placement zone like the one described above can only be represented in so many ways: the idea and the expression have merged. The boundary line of the placement zone must be filtered out under the Altai analysis.

court must filter out expression "dictated by considerations of efficiency, so as to be necessarily incidental to that idea"

See Altai, 982 F.2d at 707 (court must filter out expression “dictated by considerations of efficiency, so as to be necessarily incidental to that idea”).

finding merg er where there was a "limited range of expression available to depict places."

Cf. MiTek, 864 F.Supp. at 1582 (finding merg er where there was a “limited range of expression available to depict places.”)


Context: In departing from the presumptive sentences for Sebasky's conviction under Minn.Stat. SS 609.342, subd. 1(a) (Supp.1990) (definition unchanged in current statute) and his first conviction under Minn.Stat. SS 609.342, subd. 1(g), the trial court relied on numerous valid aggravating factors, including the multiple incidents and multiple types of abuse, Sebasky's planning and manipulation, his knowledge that he was HIV positive at the time of the incidents, and the violation of his position of trust and authority.

See Kilcoyne v. State, 344 N.W.2d 394, 397 (Minn.1984) (affirming an upward departure and noting the multiple types of penetration and ongoing nature of the abuse); State v. Kindem, 338 N.W.2d 9, 17-18 (Minn. 1983) (citing planning as an appropriate aggravating factor justifying a departure), cert, denied, 466 U.S. 974, 104 S.Ct. 2352, 80 L.Ed.2d 825 (1984); Perkins v. State, 540 N.W.2d 908, 912 (Minn.App.1995) (affirming a greater-than-triple departure based in part on the defendant’s knowledge of his infection with the AIDS virus), review granted (Minn. Feb. 27, 1996); State v. Griffith, 480 N.W.2d 347, 351 (Minn.App.1992) (finding the defendant’s abuse of the trust that the teenage complainant placed in him when she decided to move in with his family was a valid aggravating factor), review denied (Minn. Mar. 19, 1992); see also State v. Mesich, 396 N.W.2d 46, 52 (Minn.App.1986) (“Multiple penetrations alone will generally justify a double * ⅜ * departure.”), review denied (Minn. Jan. 2, 1987). The record supports these considerations and the multitude of aggravating factors shows Sebasky’s conduct was particularly egregious, thus warranting the triple departure imposed for his violation of Minn.Stat. § 609.342, subd. 1(a).

"Multiple penetrations alone will generally justify a double *  3/8  * departure."


affirming a greater-than-triple departure based in part on the defendant's knowledge of his infection with the AIDS virus


finding the defendant's abuse of the trust that the teenage complainant placed in him when she decided to move in with his family was a valid aggravating factor


Context: A series of misclassified entries was each determined by Customs to be a separate violation of section 1641(b)(4) in light of the totality of the circumstances addressed in this opinion. Moreover, it is doubtful that the doctrine of multiplicity is applicable to civil or administrative matters.

'The Clause protects only against the imposition of multiple criminal punishments for the same offense."

See Hudson v. United States, 522 U.S. 93, 99 (1997) (‘The Clause protects only against the imposition of multiple criminal punishments for the same offense.”) (emphasis in origianl); see also United States ex rel. Marcus v. Hess, 317 U.S. 537, 548-49 (1943) (“Only [criminal punishment] subject[s] the defendant to ‘jeopard/ within the constitutional meaning”).

"Only [criminal punishment] subject[s] the defendant to 'jeopard/ within the constitutional meaning"


Context: This case does not require us to decide whether the government must show actual environmental contamination to justify an increase under SS 2Q1.2(b)(l)(B). Assuming this showing is required, the record shows environmental contamination. Because the waste was volatile, the air carried the waste's organic compounds.

See Ferrin, 994 F.2d at 664 (environment contaminated when hazardous waste contacts with land or water or is released into the air); Bogas, 920 F.2d at 368 (finding of no environmental contamination would be clearly erroneous given visual contamination of soil, detectable contamination of atmosphere, and probable water contamination); see also United States v. Sellers, 926 F.2d 410, 418 (5th Cir.1991) (district court may have inferred actual environmental contamination from leaking barrel of hazardous waste found on creek bank).


finding of no environmental contamination would be clearly erroneous given visual contamination of soil, detectable contamination of atmosphere, and probable water contamination


Context: . In other words, the probability values derived from the Fisher's exact test at these various promotion levels in all instances but one exceeded 0.05 and the number of standard deviations at the same levels were always less than two.

noting that the "likelihood that the actual results will fall more than one standard deviation beyond the expected results is about 32% ... [while] [f]or more than two standard deviations, it is about 4.6% and for more than three standard deviations, it is about [0].03%."

See Castaneda v. Partida, 430 U.S. 482, 497 n. 12, 97 S.Ct. 1272, 1281 n. 12, 51 L.Ed.2d 498 (1977) (noting general rule that standard deviations greater than two or three necessarily exclude chance as a cause of underrepresentation); see also Kirkland v. New York State Dept, of Correctional Services, 711 F.2d 1117, 1131 n. 17 (2d Cir.1983) (noting that the "likelihood that the actual results will fall more than one standard deviation beyond the expected results is about 32% ... [while] [f]or more than two standard deviations, it is about 4.6% and for more than three standard deviations, it is about [0].03%.”) (citation omitted), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984).


Context: Pursuant to section 4654(c), expenses associated with filing a Fifth Amendment takings claim are reimbursable; expenses incurred prior and not directly related to the filing itself are not.

holding "that the plain language of 42 U.S.C. SS 4654(c) precludes the court from including in its award to the plaintiffs any reimbursement for expenses incurred by the plaintiffs before they decided to file suit in the Court of Claims under 28 U.S.C.- SS 1491."

See, e.g., Preseault v. United States, 52 Fed.Cl. 667, 671 (2002) (“Section 4654(c) does not provide for the reimbursement of expenses incurred by plaintiffs before their decision to file suit in the Court of Federal Claims.”); see also Emeny v. United States, 208 Ct.Cl. 522, 527, 526 F.2d 1121 (1975) (holding “that the plain language of 42 U.S.C. § 4654(c) precludes the court from including in its award to the plaintiffs any reimbursement for expenses incurred by the plaintiffs before they decided to file suit in the Court of Claims under 28 U.S.C.- § 1491.”). Although the Court acknowledges that Marzulla Law may have used the factual and legal knowledge it gained by drafting the preliminary report in litigating Otay Mesa’s takings claim, ultimately this fee was not incurred “because of such proceeding.” 42 U.S.C. § 4654(c). As such, it is not within this Court’s purview to award compensation to Otay Mesa for the litigation strategy memorandum.

"Section 4654(c) does not provide for the reimbursement of expenses incurred by plaintiffs before their decision to file suit in the Court of Federal Claims."


Context: On the other hand, mere mention of an intent to obtain a warrant or command authorization does not vitiate consent. The question in each case is whether, under the totality of the circumstances, the consent is truly voluntary.

mention of intent to seek command authorization "must be done in an appropriate manner so as to make the resulting consent truly voluntary"

See United States v. McClain, 31 MJ 130, 133 (CMA 1990) (mention of intent to seek command authorization “must be done in an appropriate manner so as to make the resulting consent truly voluntary”); see also United States v. White, 979 F.2d 539, 542 (7th Cir.1992) (“When the expressed intention to obtain a warrant is genuine ... and not merely a pretext to induce submission, it does not vitiate consent.”); United States v. Faruolo, 506 F.2d 490, 494 (2d Cir.1974) (consent voluntarily given even though FBI agent said warrant would be sought and probably would be given).

"When the expressed intention to obtain a warrant is genuine ... and not merely a pretext to induce submission, it does not vitiate consent."


consent voluntarily given even though FBI agent said warrant would be sought and probably would be given


Context: The Fourth Circuit has also adopted this interpretation of section 33(f) in determining apportionment among parties. See I.T.O.

"Employer's offset rights [under section 33(g)] are limited to the portion intended for the claimant since the claimant is the 'person entitled to compensation.' "

Corp. of Baltimore v. Sellman, 967 F.2d 971 (4th Cir.), cert. denied, — U.S. -, 113 S.Ct. 1579, 123 L.Ed.2d 147 (1993) (“Employer’s offset rights [under section 33(g)] are limited to the portion intended for the claimant since the claimant is the ‘person entitled to compensation.’ ”).

in the context of an employer's lien, "[e]m-ployer's offset rights are limited to the portion of the recovery intended for the employee"

See also Brown v. Forest Oil Corp., 29 F.3d 966, 972 (5th Cir.1994) (in the context of an employer’s lien, “[e]m-ployer’s offset rights are limited to the portion of the recovery intended for the employee”).


Context: Griego has alleged no formal or written policy-- whether an informal policy exists at all is ultimately a question of fact -- and so the analysis changes. Discriminatory application of a facially' neutral law -- and New Mexico's domestic-battery statute is facially neutral -- violates the Equal Protection Clause when there is a showing of both (i) discriminatory intent or purpose; and (ii) discriminatory effect.

"[0]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact." (emphasis in original

See United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996); Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (“[0]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.” (emphasis in original)); Palmer v. Thompson, 403 U.S. 217, 224, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971) (“[N]o case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it.”).

holding that, "to assert a viable equal protection claim, plaintiffs must first make a threshold showing that they were differently treated from others who were similarly situated to them"

See also Marsh v. Newton, 134 F.3d 383, at *2 (10th Cir.1998) (unpublished) (“‘To establish a gender-based claim under the Equal Protection Clause, [the plaintiff] must, .as a threshold matter, demonstrate that [the plaintiff has] been treated differently by a state actor than others who are similarly situated simply because [the plaintiff] belong[s] to a particular class.’” (quoting Keevan v. Smith, 100 F.3d 644, 647-48 (8th Cir.1996))); Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir.1998) (holding that, “to assert a viable equal protection claim, plaintiffs must first make a threshold showing that they were differently treated from others who were similarly situated to them”). If the plaintiff can produce evidence of discriminatory purpose, then the burden shifts to the government to prove that it would have taken the same action without the discriminatory motivation.


"[N]o case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it."


Context: Addressing the Title VII claim, the Miller court recognized that the term "employer" includes the employer's "agent"; however, it agreed with the trial court that "the obvious purpose of this agent provision was to incorporate respondeat superior liability into the statute."

Id. at 587 (brackets omitted); see Sauers v. Salt Lake Co., 1 F.3d 1122, 1125 (10th Cir.1993) (when a plaintiff sues a supervisor under Title VII, the supervisor “operates as the alter ego of the employer, and the employer is liable for the unlawful employment practices”); cf. Bell v. Chesapeake & Ohio Ry. Co., 929 F.2d 220, 224 (6th Cir. 1991) (employer liable for harassment by its employee under respondeat superior theory when it knew or should have known about harassment and failed to implement corrective action).

when a plaintiff sues a supervisor under Title VII, the supervisor "operates as the alter ego of the employer, and the employer is liable for the unlawful employment practices"


Context: The Court of Appeals noted as much when remanding the instant action to this Court. (See Doc. No. 114 at 5 n. 2.) While the undersigned agrees with Plaintiff that a decision by one district judge may well be persuasive to another district judge, the simple fact of the matter is that judges are not bound to hew even to themselves and frequently depart from the logic of their brothers and sisters.

See, e.g., Springer v. McLane Co., 692 F.Supp.2d 1050, 1059 & n. 13 (D.Minn.2010) (Kyle, J.) (noting split on a legal issue within the District of Minnesota and that the undersigned had, at different times, chosen to adopt different answers on the issue); see also IBM Credit Corp. v. United Home for Aged Hebrews, 848 F.Supp. 495, 497 (S.D.N.Y.1994) (“District court rulings have influence only to the extent that jurists in other cases find them convincing.”).

"District court rulings have influence only to the extent that jurists in other cases find them convincing."


Context: Unlike the Remmer facts, we find no evidence of deliberate coercion in the record and no evidence of an unintended effect tantamount to FBI questioning of a juror during deliberations.

See United States v. Armstrong, 654 F.2d 1328 (9th Cir.1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1032, 71 L.Ed.2d 315 (1982) (numerous ex parte contacts deemed harmless, including court note to “return a verdict” following rescission of jury note saying jury “deadlock[ed]”); United States v. Weiner, 578 F.2d 757, 765 (9th Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978) (bailiff statement that he “assumed ... judge would ‘like’ a verdict” harmless); see also United States v. Brumbaugh, 471 F.2d 1128 (6th Cir.), cert. denied, 412 U.S. 918, 93 S.Ct. 2732, 37 L.Ed.2d 144 (1973) (bailiff comments urging speedy decision and inquiring as to numerical division of jury deemed harmless); Callanan v. United States, 223 F.2d 171, 180-81 (8th Cir.), cert. denied, 350 U.S. 862, 76 S.Ct. 102, 100 L.Ed. 764 (1955) (deputy marshal’s comments that hung jury not permitted and jurors to be confined until decision reached deemed harmless).

numerous ex parte contacts deemed harmless, including court note to "return a verdict" following rescission of jury note saying jury "deadlock[ed]"


deputy marshal's comments that hung jury not permitted and jurors to be confined until decision reached deemed harmless


bailiff statement that he "assumed ... judge would 'like' a verdict" harmless


Context: . Wire fraud, like mail fraud, is a racketeering activity and thus a predicate offense for money laundering.

stating that "[w]ire fraud consists of (1) a scheme to defraud and (2) a use of a wire transmission for the purpose of executing, or attempting to execute, the scheme"

See Morelli, 169 F.3d at 806 (stating that "[w]ire fraud consists of (1) a scheme to defraud and (2) a use of a wire transmission for the purpose of executing, or attempting to execute, the scheme”); see also id. at 806 n. 9 (explaining that the federal wire fraud and mail fraud statutes "differ only in form, not in substance, and cases ... interpreting one govern the other as well”); see also United Stales v. Tarnopol, 561 F.2d 466, 475 (3d Cir.1977) ("[T]he cases interpreting the mail fraud statute are applicable to the wire fraud statute as well.”).

"[T]he cases interpreting the mail fraud statute are applicable to the wire fraud statute as well."


Context: Similarly, the Federal Circuit has found that claims directed to a "new and useful technique" for performing a particular task were not abstract.

holding that "claims directed to a new and useful technique for using sensors to more efficiently track an object on a moving platform" were not abstract

Thales Visionix Inc. v. United States, 850 F.3d 1343, 1349 (Fed. Cir. 2017) (holding that “claims directed to a new and useful technique for using sensors to more efficiently track an object on a moving platform” were not abstract); Rapid Litigation Management Ltd. v. CellzDirect, Inc., 827 F.3d 1042, 1045, 1050 (Fed. Cir. 2016) (holding that claims directed to “a new and useful laboratory technique for preserving hepato-cytes,” a type of liver cell, were not abstract); see also Diamond v. Diehr, 450 U.S. 175, 177, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981) (holding that claims for a method to calculate the optimal cure time for rubber were not abstract).


holding that claims directed to "a new and useful laboratory technique for preserving hepato-cytes," a type of liver cell, were not abstract


Context: Since plaintiff has presented no objective evidence to disprove defendant's asserted sound levels, those figures must be assumed to be true for purposes of this motion. If in fact, as the LIRR asserts, the sound levels of its horns were in compliance with both the FRSA minimum standard and with OSHA's regulations, the plaintiff will have a difficult, if not impossible, time establishing that the railroad was negligent.

holding that "simply establishing that the workplace is noisy fails to meet the legal requirements for proving negligence"

See Lessee v. Union Pac. R.R. Co., 38 Wash. App. 802, 804-07, 690 P.2d 596, 598-600 (Wash.Ct.App.1984) (finding that where the time weighted average of noise exposure was below OSHA levels requiring protection, plaintiff had failed to demonstrate negligence); see also Broussard v. Union Pac. R. Co.,. 700 So.2d 542, 550 (La.Ct.App.1997) (holding that “simply establishing that the workplace is noisy fails to meet the legal requirements for proving negligence”).


Context: If the issue is whether the costs of arbitration will make the arbitral forum prohibitively expensive for the individual plaintiff, then determining whether the actual costs of completed arbitration reach that level would be much simpler than determining, in advance, whether the projected costs of arbitration will reach that level. Requiring plaintiffs to arbitrate their claims and then argue, either to the arbitrator or to the reviewing court, that the costs were prohibitive avoids the problem identified in Green Tree, namely the "speculative" or "conjectural" nature of the costs of arbitration. The reviewing court would have before it the actual costs and would be charged with the task of determining whether those actual costs make the arbitral forum prohibitively costly.

"At this point in the litigation it is not clear how large the fees of the arbitration will be or whether plaintiff will be required to pay any portion of it...."

See Klinedinst, 2001 WL 1561821, at *14 (“By the time the arbitrator reaches the costs and fees issues, the record will obviously be far less vague and speculative than it is now.”); see also Arakawa, 56 F.Supp.2d at 355 (“At this point in the litigation it is not clear how large the fees of the arbitration will be or whether plaintiff will be required to pay any portion of it....”).

"By the time the arbitrator reaches the costs and fees issues, the record will obviously be far less vague and speculative than it is now."


Context: Landers has not fallen on deaf ears. The Courts of Appeals that have addressed this issue -- the Second, Seventh, and Eleventh Circuits -- have cited Landers with approval.

"In calculating the amount of 'improper benefit[ ]' [under SS 2E5.1(b

See United States v. Glick, 142 F.3d 520, 525 (2d Cir.1998) (“In calculating the amount of ‘improper benefit[ ]’ [under § 2E5.1(b)(2) ] only direct costs, not indirect costs, should be subtracted from the gross value received.”); Sapoznik, 161 F.3d at 1119 (agreeing that fixed costs should be included in net value but finding it unclear whether the costs at issue were indeed fixed); United States v. DeVegter, 439 F.3d 1299, 1304 (11th Cir.2006) (“We agree with the Fifth Circuit’s approach which subtracts direct costs, but not indirect costs, from profits to determine the net improper benefit [under § 2B4.1(b)(l) ].”).

"I hold that only 'direct costs' are deductible in calculating the amount of the benefit conferred [under SS 2B4.1(b

See also Cohen, 171 F.3d at 803 (citing Landers generally); United States v. Leon, 2 F.Supp.2d 592, 596 (D.N.J.1998) (“I hold that only ‘direct costs’ are deductible in calculating the amount of the benefit conferred [under § 2B4.1(b)(l)]____ Indirect costs are not deductible.”).


agreeing that fixed costs should be included in net value but finding it unclear whether the costs at issue were indeed fixed


"We agree with the Fifth Circuit's approach which subtracts direct costs, but not indirect costs, from profits to determine the net improper benefit [under SS 2B4.1(b


Context: He also maintained that the information would factually support his entrapment defense. It is well settled that evidence that would enable effec tive cross-examination and impeachment may be material and that nondisclosure of such evidence may deprive an accused of a fair trial.

Bagley, 473 U.S. at 676-78 (noting, however, that failure to disclose such evidence does not implicate the Sixth Amendment Confrontation Clause); see also Giglio v. United States, 405 U.S. 150, 154 (1972) (“When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within [Brady].”) (citation omitted).

"When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within [Brady]."


Context: Case law shows that it is not necessarily the immediate supervisor that is important for determining valid comparators, but rather the decision maker.

"[T]he employee must generally show the same decisionmaker made the disparate employment decisions."

See Holtz v. Jefferson Smurfit Corp., 408 F.Supp.2d 193, 206 (M.D.N.C.2006) (“[T]he employee must generally show the same decisionmaker made the disparate employment decisions.”) (emphasis added), aff’d, 242 Fed.Appx. 75 (4th Cir.2007) (per curiam) (unpublished); see also Herron v. Virginia Commonwealth Univ., 366 F.Supp.2d 355, 368 n. 16 (E.D.Va.2004) (observing that the fact that an agent of the defendant “who took different action under allegedly similar circumstances involving other students who were outside the protected class was a different individual than the decisionmaker in Plaintiffs case, is a fatal distinction”) (emphasis added); see also Forrest, 245 Fed.Appx. 255 (“If different decision-makers are involved, employees are generally not similarly situated.”).

observing that the fact that an agent of the defendant "who took different action under allegedly similar circumstances involving other students who were outside the protected class was a different individual than the decisionmaker in Plaintiffs case, is a fatal distinction"


"If different decision-makers are involved, employees are generally not similarly situated."


Context: "It is well established that an order awarding attorney fees in relation to an underlying case is, itself, an appealable judgment.

giving certiorari review to an attorney-fee order appealed to the lower appellate court and observing that a petition for an attorney fee in equity is 'an independent proceeding supplemental to the original proceeding'

Cf. Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 170, 59 S.Ct. 777, 83 L.Ed. 1184 (1939)(giving certiorari review to an attorney-fee order appealed to the lower appellate court and observing that a petition for an attorney fee in equity is ‘an independent proceeding supplemental to the original proceeding’).

'[A]ttomey-fee matters are separate and distinct from matters going to the merits of a dispute and ... an appeal may be taken from a final judgment as to either aspect of a case.'

Niezer v. SouthTrust Bank, 887 So.2d 919, 923 (Ala.Civ.App.2004) (‘[A]ttomey-fee matters are separate and distinct from matters going to the merits of a dispute and ... an appeal may be taken from a final judgment as to either aspect of a case.'); Hunt v. NationsCredit Fin. Servs.


Corp., 902 So.2d 75, 81 (Ala.Civ.App.2004) (concluding that Niezer stands for the proposition that 'an order denying an award of attorney fees that is ancillary to an earlier decision and has completely adjudicated all matters in controversy between the parties is immediately appealable’ and is consistent with the United States Supreme Court decision in Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988)); Sparks v. Parker, 368 So.2d 528 (Ala.1979) (reviewing a trial court's order establishing and administering Calhoun County's indigent-defense system by way of an appeal); C.A. Wright et al., Federal Practice and Procedure § 3915.6 (2d ed.1992); Clark v. Johnson, 278 F.3d 459 (5th Cir.2002)(holding that an order denying compensation under the federal Criminal Justice Act for services performed before a state clemency board by counsel appointed to represent a state prisoner was final and appealable, despite the fact that the order was separate from the merits of the habeas corpus proceeding).


holding that an order denying compensation under the federal Criminal Justice Act for services performed before a state clemency board by counsel appointed to represent a state prisoner was final and appealable, despite the fact that the order was separate from the merits of the habeas corpus proceeding


Context: Defendants note that there is a strong public policy supporting the right of a client to discharge an attorney at any time, despite contractual provisions to the contrary. From this they argue that, because an attorney has no contractual right to continued employment by his client, plaintiff has not stated a claim under SS 1981. However, even if one were to consider a contract between an attorney and client to be an agreement that is terminable at will by the client, such a contract could not be terminated for a discriminatory reason.

"There is no 'at-will' defense to a federal discrimination complaint."

See Campbell v. AT & T Communications, 1994 WL 380620, at *3 (N.D.Ill. July 18, 1994) (“There is no ‘at-will’ defense to a federal discrimination complaint.”); see also Baker v. Am. Juice, Inc., 870 F.Supp. 878, 883 (N.D.Ind. 1994) (§ 1981 applicable when at-will employee alleged that he had been discharged on the basis of his race).

SS 1981 applicable when at-will employee alleged that he had been discharged on the basis of his race


Context: We hold that this marijuana cigarette was not improperly seized by the Government and that the military judge did not err in admitting it as evidence at appellant's court-martial.

"defendant's response to even an invalid arrest or Terry stop may constitute independent grounds for arrest" and search incident thereto

See United States v. Dawdy, 46 F.3d 1427, 1431 (8th Cir.1995) (“defendant’s response to even an invalid arrest or Terry stop may constitute independent grounds for arrest” and search incident thereto); see also United States v. Green, 111 F.3d 515, 523 (7th Cir.1997) (lawful arrest on an outstanding warrant not tainted by illegal, but not bad faith, investigative stop).


Context: We find that consideration of dismissed offenses as a basis for an upward departure under SS 4A1.3 is a breach of that structure. We adopt the reasoning outlined by the Ninth Circuit that a sentencing court should not be allowed to violate the bargain worked out between the defendant and the government.

allowing consideration of offenses dismissed pursuant to plea bargains prior to the presently charged offenses, distinguishing Castro-Cervantes on the grounds that it "holds no more than that a defendant who pleads guilty receives the Guideline sentence for the crime to which he pleaded."

Castro-Cervantes, 927 F.2d at 1082; United States v. Saldana, 12 F.3d 160, 163 (9th Cir.1993); see also United States v. Ruffin, 997 F.2d 343, 346 (7th Cir.1993) (allowing consideration of offenses dismissed pursuant to plea bargains prior to the presently charged offenses, distinguishing Castro-Cervantes on the grounds that it “holds no more than that a defendant who pleads guilty receives the Guideline sentence for the crime to which he pleaded.”); but see United States v. Zamarripa, 905 F.2d 337, 341 (10th Cir.1990) (when a defendant pleads to one in a series of offenses, some of which are dismissed, an upward departure is allowable based on the dismissed counts.).


Context: Section 42-56-21(a). In comparable circumstances this Court has held that the statutory powers and obligations of the state cannot be contractually abdicated.

Brotherhood of Correctional Officers, 587 A.2d at 915 (CBA was invalid because it conflicted with the statutory power of the director of the DOC to require correctional officers to work involuntary overtime); see also State Department of Mental Health, Retardation, and Hospitals v. Rhode Island Council 94, 692 A.2d 318, 324-25 (R.I. 1997) (department has statutory responsibility to provide for the health and safety of its patients and may not arbitrate whether employees can decide for themselves how many consecutive hours of overtime they will work); Pawtucket School Committee v. Pawtucket Teachers’ Alliance, Local No. 930, 652 A.2d 970, 972 (R.I.1995) (school committee cannot bargain away its responsibility of evaluating bilingual language programs for state law compliance).


school committee cannot bargain away its responsibility of evaluating bilingual language programs for state law compliance


Context: Prior to Ubiles, one Superior Court judge observed that "[rjead together, the plain language of the statutes [23 V.I.C. SSSS 488 and 14 V.I.C. SS 2253(a)] suggests a legislative intent to make the mere carrying of a firearm illegal." Likewise, after Ubiles and before Lewis, several Superior Court judges have recognized the potential implications of section 488.

holding "stop and frisk" of individual who police were told was carrying a firearm was permissible, even though police were not told that gun was unlicensed and individual cooperated and made no unusual movements

See Allen v. State, 85 Md. App. 657, 584 A.2d 1279, 1284-85 (Md. Ct. App. 1991) (permitting search under article 27, section 36D despite officer’s lack of knowledge, and failure to ask questions calculated to determine, whether defendant was licensed to carry a gun); see also Quince v. State, 319 Md. 430, 572 A.2d 1086, 1087-88 (Md. 1990) (holding “stop and frisk” of individual who police were told was carrying a firearm was permissible, even though police were not told that gun was unlicensed and individual cooperated and made no unusual movements).

"The language under 23 V.I.C. SS 488 is clear concerning an officer['s] encounter with someone who has a firearm. Prior to arrest, and in the absence of evidence supporting probable cause that other criminal activity is afoot, the police must inquire of the person as to whether he has a license to possess a firearm."

See, e.g., People v. Matthew, 55 V.I. 380, 393 (V.I. Super. Ct. 2011) (“The language under 23 V.I.C. § 488 is clear concerning an officer[’s] encounter with someone who has a firearm. Prior to arrest, and in the absence of evidence supporting probable cause that other criminal activity is afoot, the police must inquire of the person as to whether he has a license to possess a firearm.”); People v. Fredericks, 54 V.I. 161 at 166 (V.I. Super. Ct. 2011) (“[I]n the Virgin Islands when investigating crimes involving firearms, the authority of law enforcement officers to conduct a limited search of a suspect is governed by V.I. CODE Ann. tit. 23, § 488.”); People v. Samuel, Super. Ct. Nos. 556/2009, 557/2009 (STX), 2010 V.I. LEXIS 80, at *17 (V.I. Super. Ct. Nov. 12, 2010) (noting that “Virgin Islands law expressly authorizes law enforcement officers to investigate a person’s possession of a firearm” and holding that “Section 488 plainly lays out the procedures of an officer[’s] encounter with someone who has a firearm.”). The Third Circuit, however, never cited or discussed section 488 or these Superior Court decisions in either Ubiles or Lewis. Significantly, section 488 contains virtually identical language to the former article 27, section 36D of the Maryland Code, and Maryland appellate courts have held that this statute permits a search of any individual suspected of possessing a concealed gun, without also requiring reasonable suspicion that the gun is not licensed.


"[I]n the Virgin Islands when investigating crimes involving firearms, the authority of law enforcement officers to conduct a limited search of a suspect is governed by V.I. CODE Ann. tit. 23, SS 488."


noting that "Virgin Islands law expressly authorizes law enforcement officers to investigate a person's possession of a firearm" and holding that "Section 488 plainly lays out the procedures of an officer['s] encounter with someone who has a firearm."


permitting search under article 27, section 36D despite officer's lack of knowledge, and failure to ask questions calculated to determine, whether defendant was licensed to carry a gun


Context: The defendants use the terms "conditions of'payment" and "conditions of participation" to draw an 'unnecessarily sharp line betiveen different types of problematic behayior. Whatever label the defendants wish to apply to the conduct at issue, the relators have properly alleged an FCA violation if they have described deficient conduct that would have been material to.the government's decision to provide payment.

labeling the condition of participation versus condition of payment distinction nothing more than "a distinction without a difference"

See Hendow v. Univ. of Phx., 461 F.3d 1166, 1176 (9th Cir.2006) (labeling the condition of participation versus condition of payment distinction nothing more than “a distinction without a difference”); see also United States ex rel. Miller v. Weston Educ., Inc., 784 F.3d 1198, 1207-08 (8th Cir.2015) (in a case arising in the fi'audulent inducement context, citing Hendow favorably and noting Hendow’s rejec tion of the distinction between conditions of participation and payment).

in a case arising in the fi'audulent inducement context, citing Hendow favorably and noting Hendow's rejec tion of the distinction between conditions of participation and payment


Context: Moreover, the government will be at the mercy of a private company hired and paid for by defendant, which the government has not itself chosen and over which the government exercises no hiring, training, or supervisory control. As the Court noted during the hearing on March 20, the questions about the legal authorization for the private security firm to use force against defendant should he violate the terms of his release, and the questions over whether the guards can or should be armed, underscore the legal and practical uncertainties^ -- indeed, the imperfections- -- -of the private jail-like concept envisioned by defendant, as compared to the more secure option of an actual jail.

"Safety of the community will be assured only if the government provides trustworthy trained staff to carry out the extensive monitoring of homes, telephones, and travel that would be necessary to ensure compliance with the conditions of bail."

See Banki, 369 Fed.Appx. at 153-54 (rejecting argument that district court erred by denying bail where defendant proposed that home confinement would be enforced by private security guards financed by his own expense and noting that “issues regarding the nature of the security that would be provided by such an arrangement, and the additional costs to the government in supervising such an arrangement ... persuade us that it is not legal error for a district court to decline to accept such a condition of release as a substitute for detention”); see also Orena, 986 F.2d at 632-33 (“Safety of the community will be assured only if the government provides trustworthy trained staff to carry out the extensive monitoring of homes, telephones, and travel that would be necessary to ensure compliance with the conditions of bail.”); Colorado-Cebado, 2013 WL 5852621, at *6 (“What more, compelling case for an order of detention is there than a case in which only an armed guard and the threat of deadly force is sufficient to assure the defendant’s appearance?

rejecting argument that district court erred by denying bail where defendant proposed that home confinement would be enforced by private security guards financed by his own expense and noting that "issues regarding the nature of the security that would be provided by such an arrangement, and the additional costs to the government in supervising such an arrangement ... persuade us that it is not legal error for a district court to decline to accept such a condition of release as a substitute for detention"


Context: But appellant, who was present with counsel, did not object when panelists 114, 76, and 38 were disqualified, nor did he object when the fourth panelist interviewed at the bench was deemed qualified for service. Independent of any duty imposed on the court reporter by rule 13.1(a) to record the bench conferences, it was appellant's duty to object to any improper ruling by the trial court regarding the qualifications for jury service.

P. 33.1; see also Mayo v. State, 4 S.W.3d 9, 12 (Tex.Crim. App.1999) (defendant must timely object or show significant harm from service by disqualified juror); Ladd v. State, 3 S.W.3d 547, 562 (Tex.Crim.App.1999) (failure to object when panelist excused for cause forfeits issue on appeal); Mays v. State, 726 S.W.2d 937, 950 (Tex.Crim.App. 1986) (failure to object when panelist excused for economic hardship forfeits issue on appeal).

reporter's failure to record bench conferences did not excuse defendant from duty to properly preserve error in rulings on challenges for cause

See Tanguma, 47 S.W.3d at 678 (reporter’s failure to record bench conferences did not excuse defendant from duty to properly preserve error in rulings on challenges for cause); Tex.R.App.


failure to object when panelist excused for cause forfeits issue on appeal


failure to object when panelist excused for economic hardship forfeits issue on appeal


Context: Robert L. Stern et al., Supreme Court Practice SS 4.29, at 284 (8th ed.2002). Hence the Supreme Court's summary disposition in Cooper cannot be interpreted as endorsing the Oregon Supreme Court's reasoning, particularly since that reasoning flatly contradicts Widmar.

stating that, even though a lower court's interpretation of a summary affirmance by the Supreme Court was "plausible," it was improper because it would "leave little vitality" to an earlier Supreme Court decision

See Fusari v. Steinberg, 419 U.S. 379, 388-89 n. 15, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975) (stating that, even though a lower court's interpretation of a summary affirmance by the Supreme Court was “plausible,” it was improper because it would “leave little vitality” to an earlier Supreme Court decision); see also id. at 391-92, 95 S.Ct. 533 (Burger, C.J., concurring) ("An unexplicated summary affirmance settles the issues for the parties, and is not to be read as a renunciation by this Court of doctrines previously announced in our opinions after full argument.”).

"An unexplicated summary affirmance settles the issues for the parties, and is not to be read as a renunciation by this Court of doctrines previously announced in our opinions after full argument."


Context: Indeed, courts have held that prosecutorial misconduct must rise to an egregious level for double jeopardy to bar a retrial. A defendant cannot be retried only "where the misconduct of the prosecutor is undertaken ... to prevent an acquittal that [he] believed at the time was likely to occur in the absence of his misconduct."

United States v. Wallach, 979 F.2d 912, 916 (2d Cir.1992) (holding that prosecutorial misconduct bars retrial after conviction overturned because of perjured testimony only where this stringent standard met), cert. denied, - U.S. -, 113 S.Ct. 2414, 124 L.Ed.2d 637 (1993); see also Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091-92, 72 L.Ed.2d 416 (1982) (retrial after defense moves for mistrial barred by double jeopardy only where “the conduct giving rise to the successful motion ... was intended to provoke the defendant into moving for a mistrial”); United States v. Cartagenar-Carrasquillo, 70 F.3d 706, 714-15 (1st Cir.1995) (when no evidence of prosecutorial misconduct, defendant’s successful motion for mistrial does not trigger double jeopardy).

retrial after defense moves for mistrial barred by double jeopardy only where "the conduct giving rise to the successful motion ... was intended to provoke the defendant into moving for a mistrial"


when no evidence of prosecutorial misconduct, defendant's successful motion for mistrial does not trigger double jeopardy


Context: Finally, the judge concluded that under governing law in the Lebanese Jaafarite Court, the mother would not have been awarded custody of the sons after the age of two had she sought custody in that court. These subsidiary and ultimate findings and rulings support a determination that the mother's agreement to give guardianship of the children to the father was obtained under duress and was thus unenforceable.

Cf. Segal v. Segal, 278 N.J. Super. 218, 222 (1994) (one-sided settlement agreement obtained in exchange for granting wife Jewish divorce was unenforceable as a product of duress); Golding v. Golding, 176 A.D.2d 20, 21-24 (N.Y. 1992) (wife compelled to enter into agreement by husband’s invocation of his power to refuse to give her a Jewish divorce).

"It is well established that a contract entered into under duress is voidable"

See Cabot Corp. v. AVX Corp., 448 Mass. 629, 637 (2007) (“It is well established that a contract entered into under duress is voidable”). To avoid enforcement of a contract, a contracting party may prevail on a theory of duress if she demonstrates “(1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party.”


wife compelled to enter into agreement by husband's invocation of his power to refuse to give her a Jewish divorce


Context: . Galbreath does not address the ALJ's adverse credibility determination.

See Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir.2005) (claimant failed to recognize that ALJ’s RFC determination was influenced by determination that her allegations were less than credible); see also Hacker v. Barnhart, 459 F.3d 934, 937 n. 2 (8th Cir.2006) (issue is deemed abandoned when it is not raised or discussed in brief).

claimant failed to recognize that ALJ's RFC determination was influenced by determination that her allegations were less than credible


Context: Third, the ALJ did not err in assessing the plaintiffs credibility with respect to her subjective complaints. The ALJ properly considered the record as a whole, including the available medical evidence and the nature and extent of the plaintiffs daily activities, in determining that the plaintiffs subjective complaints were not fully credible.

considering a plaintiffs daily activities as support for the ALJ's findings that the plaintiff was capable of performing past relevant work

See Hollis v. Bowen, 837 F.2d 1378, 1384-85 (5th Cir.1988) (explaining that the lack of objective factors supporting subjective allegations of pain were properly considered in determining credibility); see also Leggett v. Chater, 67 F.3d 558, 565 (5th Cir.1995) (considering a plaintiffs daily activities as support for the ALJ’s findings that the plaintiff was capable of performing past relevant work).


Context: This standard is strict -- courts have held that vague references in a contract to a general class of documents are not sufficient to incorporate an extrinsic document by reference in the contract.

granting a motion to dismiss and finding that a statement in the contract at issue -- "may contain other terms and conditions" -- was not sufficient to incorporate extrinsic representations into the contract

Ward, 3 F.Supp.3d at 163 (granting a motion to dismiss and finding that a statement in the contract at issue — “may contain other terms and conditions” — was not sufficient to incorporate extrinsic representations into the contract); see also Sea Trade Co. v. FleetBoston Fin. Corp., No. 03 CIV. 10254(JFK), 2007 WL 1288592, at *4 (S.D.N.Y. May 1, 2007) (denying motion for summary judgment and finding that a separate document containing additional terms and conditions was not incorporated by reference into the contract because the contract only made reference to the general “regulations” and “rules” of the Bank and did not “expressly name the Terms and Conditions as the document that contained the applicable regulations”); Shark Info. Servs.

denying motion for summary judgment and finding that a separate document containing additional terms and conditions was not incorporated by reference into the contract because the contract only made reference to the general "regulations" and "rules" of the Bank and did not "expressly name the Terms and Conditions as the document that contained the applicable regulations"


Context: The "reasonable speculation" standard is materially different from the Jackson standard in that it prohibits convictions from resting on reasonable inferences drawn from the evidence. This new standard strongly disfavors circumstantial evidence, contrary to our long-standing recognition that a criminal conviction may rest on circumstantial evidence alone.

"[W]e do not favor direct evidence over circumstantial evidence, as either type of evidence may satisfactorily support a conviction."

See United States v. Rodríguez-Durán, 507 F.3d 749, 758 (1st Cir.2007) (“[Cjircumstantial evidence alone may be sufficient to provide a basis for conviction.”); see also United States v. Downs-Moses, 329 F.3d 253, 261 (1st Cir.2003) (“[W]e do not favor direct evidence over circumstantial evidence, as either type of evidence may satisfactorily support a conviction.”).

"[Cjircumstantial evidence alone may be sufficient to provide a basis for conviction."


Context: Lindner had twenty-five years experience as a professional photographer when defendants hired him and defendants "do not question [plaintiffs] application of technical skill, which was the reason he was hired." (Defs.' Br. at 3; Munn Reply Aff. P 8.) The record is bereft of any evidence that defendants possessed any technical photographic skills.

photographer is not merely a "mechanical" extension of hiring party

See Marco, 969 F.2d at 1551 (noting that defendant although himself an art director had hired a' professional photographer because the photographer is “the person who makes the shot work,” and describing the photographer as “certainly skilled in the sense that Reid, the sculptor in the Reid case, was skilled”); cf. Morita v. Omni Publications, Int’l, Ltd., 741 F.Supp. 1107 (S.D.N.Y.1990) (photographer is not merely a “mechanical” extension of hiring party).

noting that defendant although himself an art director had hired a' professional photographer because the photographer is "the person who makes the shot work," and describing the photographer as "certainly skilled in the sense that Reid, the sculptor in the Reid case, was skilled"


Context: Consequently, in the "rare instances" where New York courts have recognized a claim for intentional infliction of emotional distress in the employment context, the claims have alleged not merely sexual harassment, but "more significantly, battery."

Gerzog v. London Fog Corp., 907 F.Supp. 590, 604 (E.D.N.Y.1995) (citing Foster v. Chase Manhattan Bank, N.A., 609 F.Supp. 1191, 1198 (S.D.N.Y.1985) (Leisure, J.) (finding conduct sufficiently outrageous where employer forced plaintiff into an ongoing sexual relationship); O’Reilly v. Executone, Inc., 121 A.D.2d 772, 503 N.Y.S.2d 185, 186 (3d Dep’t 1986) (affirming denial of motion to dismiss where plaintiff had been subjected to physical sexual contact, jokes, pornography, and erotica); Collins v. Willcox, Inc., 158 Misc.2d 54, 600 N.Y.S.2d 884, 885-86 (Sup. Ct.1992) (holding that “a pattern of behavior that continually put [plaintiff] in embarrassing, humiliating and demeaning positions” that included sexual harassment and battery “might well rise to the level of outrageous”)); see also Salvatore, 1999 WL 796172, at *2-*3 (finding that plaintiffs who alleged episodes of harassment, including “minor physical abuse,” had stated claims for intentional infliction of emotional distress); Sowemimo, 43 F.Supp.2d at 491 (“Courts have observed that a plaintiff must allege sexual battery in order to survive ... summary judgment in the sexual harassment context.

finding that plaintiffs who alleged episodes of harassment, including "minor physical abuse," had stated claims for intentional infliction of emotional distress


holding that "a pattern of behavior that continually put [plaintiff] in embarrassing, humiliating and demeaning positions" that included sexual harassment and battery "might well rise to the level of outrageous"


Context: "Our determination that the statutes must be construed to require a hearing before the employment of a person who has once acquired status as a tenure teacher can be terminated also finds support in constitutional principles. A tenure teacher has a property right in continued employment.

Howell v. Woodlin School Dist. R-104, 198 Colo. 40, 45-46, 596 P.2d 56, 60 (1979); accord Slochower v. Board of Educ., 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); see also deKoevend v. Board of Educ. of West End School, 688 P.2d 219, 227-28 (Colo.1984) (irregular procedures violated tenure teacher’s ‘due process right to a fair and impartial determination by the board.’); cf. Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972) (teacher without tenure and without contractual right to renewal of employment has no protectible interest in reemployment). The state cannot deprive a person of such a right without due process.

irregular procedures violated tenure teacher's 'due process right to a fair and impartial determination by the board.'


Context: However, in the Second Circuit, that deference is diminished when "plain tiff is a corporation doing business abroad and can expect to litigate in foreign courts."

See also Zweig, 1993 WL 227663, at *4 (notwithstanding plaintiffs American citizenship and residency, dismissal in favor of Greece is warranted because operative facts on which the litigation was based bore little connection to New York).

"The private interest of plaintiffs in suing in its [sic] home location is diluted because it chose to do business with Japanese firms and to seek their custom, making it logical that they be required to litigate there, a result which should not expose plaintiff to surprise."

Guidi, 224 F.3d at 147. See Morrison Law Firm v. Clarion Co., Ltd., 158 F.R.D. 285, 287 (S.D.N.Y.1994) (“The private interest of plaintiffs in suing in its [sic] home location is diluted because it chose to do business with Japanese firms and to seek their custom, making it logical that they be required to litigate there, a result which should not expose plaintiff to surprise.”); CCS Int’l, Ltd. v. ECI Telesystems, Ltd., No. 97 Civ. 4646, 1998 WL 512951, at *7 (S.D.N.Y. Aug. 18, 1998) (while “it remains defendants’ burden to overcome the forum choice made by these American-eitizen plaintiffs,” for plaintiffs “who are involved in a decidedly international dispute such as this, their American citizenship and . residence do not constitute the powerful, near-decisive factors for which they contend”) (citation and internal quotation marks omitted); Sussman, 801 F.Supp. at 1073 (‘Where an American plaintiff chooses to invest in a foreign country and then complains of fraudulent acts occurring primarily in that country, the plaintiffs ability to rely upon citizenship as a talisman against forum non con-veniens dismissal is diminished.”). A plaintiffs choice of forum is also “given reduced emphasis where ... the operative facts upon which the litigation is brought bear little material connection to the chosen forum.”


'Where an American plaintiff chooses to invest in a foreign country and then complains of fraudulent acts occurring primarily in that country, the plaintiffs ability to rely upon citizenship as a talisman against forum non con-veniens dismissal is diminished."


Context: The second Pacific Indemnity factor incorporated into the Johnson analysis is the distinction between repairs and capital improvements. Because a delivery system on the whole is routinely subject to modification or expansion, these changes are considered repairs to the ongoing service, and not capital improvements for the property owner.

See Johnson, 469 N.W.2d at 519 (noting that alleged improvements were designed to meet needs of cooperative distribution system); see also Aquila, 718 N.W.2d at 885 n. 1 (noting that claim in Johnson involved alleged improvements that “were part of a larger distribution system ... installed for the benefit of the power cooperative”).

noting that claim in Johnson involved alleged improvements that "were part of a larger distribution system ... installed for the benefit of the power cooperative"


Context: This approach had been followed in other circuits. In instances of joint occupancy in which the government fails to demonstrate a nexus between the defendant and the contraband, they have concluded that the government's evidence of constructive possession was insufficient.

rejecting the government's contention that the defendant constructively possessed a pistol underneath his seat when the only evidence of a nexus was an officer's testimony that the defendant dipped his shoulder as the officer approached

See, e.g., United States v. Blue, 957 F.2d 106, 107-08 (4th Cir.1992) (rejecting the government’s contention that the defendant constructively possessed a pistol underneath his seat when the only evidence of a nexus was an officer’s testimony that the defendant dipped his shoulder as the officer approached ); United States v. Kelso, 942 F.2d 680, 681-82 (9th Cir.1991) (rejecting government’s argument, offered in support of a sentencing enhancement, that the defendant passenger constructively possessed a gun discovered behind the driver’s seat because “[although [the defendant] may have had access to the gun, there is no evidence he owned it, or even was aware of its presence”); United States v. Whitfield, 629 F.2d 136, 142-43 (D.C.Cir.1980) (finding evidence sufficient that the defendant driver, who owned the car, constructively possessed pistols under the driver’s and passenger’s seats but holding that the evidence was insufficient as to the defendant passenger); cf. United States v. Wight, 968 F.2d 1393, 1396 (1st Cir.1992) (concluding that there was sufficient evidence that the defendant constructively possessed a pistol discovered behind the front seats of a van in which he was a passenger when the government presented testimony that the pistol had been taken to the defendant’s residence on the preceding day and that the defendant was in charge of the impeding drug transaction).

concluding that there was sufficient evidence that the defendant constructively possessed a pistol discovered behind the front seats of a van in which he was a passenger when the government presented testimony that the pistol had been taken to the defendant's residence on the preceding day and that the defendant was in charge of the impeding drug transaction


rejecting government's argument, offered in support of a sentencing enhancement, that the defendant passenger constructively possessed a gun discovered behind the driver's seat because "[although [the defendant] may have had access to the gun, there is no evidence he owned it, or even was aware of its presence"


finding evidence sufficient that the defendant driver, who owned the car, constructively possessed pistols under the driver's and passenger's seats but holding that the evidence was insufficient as to the defendant passenger


Context: It was a statutory adoption. More importantly, even if the proceedings had been in equity, that would not have given the trial court authority to require the Tribes to pay the attorney fees.

Golder v. Golder, 110 Idaho 57, 61, 714 P.2d 26, 80 (1986) (in an action in equity for relief from a judgment, attorney fees could only be awarded if authorized by statute); see also Excell Constr., Inc. v. State, Dep’t of Labor, 141 Idaho 688, 696, 116 P.3d 18, 26 (2005) (provision in Idaho Code section 72-708 that the practice and procedure under the worker’s compensation law be simple and “as far as possible in accord with the rules of equity” did not authorize the awarding of attorney fees); Fournier v. Fournier, 125 Idaho 789, 791, 874 P.2d 600, 602 (Ct.App.1994) (trial court had no authority to award attorney fees to a party on the ground that the court was “[ajcting as a court of equity,” because in Idaho “there is no equitable authority to award attorney fees generally”).

provision in Idaho Code section 72-708 that the practice and procedure under the worker's compensation law be simple and "as far as possible in accord with the rules of equity" did not authorize the awarding of attorney fees


trial court had no authority to award attorney fees to a party on the ground that the court was "[ajcting as a court of equity," because in Idaho "there is no equitable authority to award attorney fees generally"


Context: We begin with the NLRA. In Boston Harbor, the Supreme Court held that the NLRA does not preempt state or local government actions taken as a market participant.

"We have held consistently that the NLRA was intended to supplant state labor regulation, not all legitimate state activity that affects labor."

See 507 U.S. at 231-32, 113 S.Ct. 1190 (“In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction.”); see also id. at 227, 113 S.Ct. 1190 (“We have held consistently that the NLRA was intended to supplant state labor regulation, not all legitimate state activity that affects labor.”).

"In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction."


Context: . Given our disposition of these issues, we need not address Tinsley's other challenges to his sentence. As to Tinsley's claim that the 120-month sentence imposed by the district court is unreasonably long, we note only that we have rejected similar sentences in cases involving defendants with extensive criminal records.

See United States v. Davenport, 445 F.3d 366, 372 (4th Cir.2006) (finding unreasonable a sentence of 120 months where advisory sentencing range was 30-37 months and defendant had more than twice the number of criminal history points needed to place him in category VI); see also United States v. Tucker, 473 F.3d 556, 564-65 (4th Cir.2007) (in case where advisory sentencing range was 24-30 months, finding sentence of 144 months to be excessive notwithstanding district court’s reasonable belief that the defendant, who was before the court on her third conviction for embezzling from an employer, was highly likely to re-offend). The district court on remand should give due consideration to these cases when imposing and explaining Tinsley’s sentence.

in case where advisory sentencing range was 24-30 months, finding sentence of 144 months to be excessive notwithstanding district court's reasonable belief that the defendant, who was before the court on her third conviction for embezzling from an employer, was highly likely to re-offend


Context: (R. 187-38, Atlas Deck P 12; R. 187-59, Saviozzi Deck P 12; R. 187-48, James Deck P 15.) Nurses in SJH's emergency department frequently combine their paid rest break with their unpaid meal break. (R. 187-38, Atlas Deck P 11.) This evidence demonstrates that Defendants did not uniformly implement the meal period policy, but rather allowed each department to implement it in a way that addressed the particular needs of the department.

decertifying automatic meal deduction collective action, finding it relevant that "[s]ome employees would not have a scheduled time for meal breaks and would take them when they could, other employees had regularly scheduled 30-minute breaks, and others had scheduled breaks that could not always be followed"

See White, 2011 WL 1883959, at *1 (decertifying automatic meal deduction collective action where, in implementing the automatic meal deduction policy, each of the defendants’ departments were “free to formulate ... procedure[s] that workfed] best for its employees”); see also Camesi v. Univ. of Pittsburgh Med. Ctr., No. 09-85J, 2011 WL 6372873, *7 (W.D.Pa. Dee. 20, 2011) (decertifying automatic meal deduction collective action, finding it relevant that “[s]ome employees would not have a scheduled time for meal breaks and would take them when they could, other employees had regularly scheduled 30-minute breaks, and others had scheduled breaks that could not always be followed”).

decertifying automatic meal deduction collective action where, in implementing the automatic meal deduction policy, each of the defendants' departments were "free to formulate ... procedure[s] that workfed] best for its employees"


Context: The state therefore proved nothing more than that Deputy Gardinier had only a bare suspicion that the car which he stopped contained the suspects. "Although appellant fit the general description of the anonymous tip, that description could have fit many men."

Strong v. State, 495 So.2d 191, 192 (Fla. 2d DCA 1986) (no founded suspicion when officer received tip that black male wearing dark clothing had a handgun at a particular convenience store, and officer patted down one of two black men at the store, who was wearing the darker clothing), review denied, 503 So.2d 328 (Fla.), cert, denied, 481 U.S. 1049, 107 S.Ct. 2180, 95 L.Ed.2d 837 (1987).

"the color of a person's skin, although an identifying factor, is insufficient by itself to adequately narrow the scope of an officer's identification"

See also James v. State, 556 So.2d 791, 793 (Fla. 1st DCA 1990) (“the color of a person’s skin, although an identifying factor, is insufficient by itself to adequately narrow the scope of an officer’s identification”); Ross v. State, 419 So.2d 1170 (Fla. 2d DCA 1982) (no founded suspicion when officer heard BOLO regarding an assault near a bar involving a black male with short, cropped hair, wearing white t-shirt and blue jeans, last seen heading north, and 25 minutes later, officer stopped defendant, who fit the description except that he had plaited hair and was heading south, because the description could have fit many people in the area); Williams v. State, 454 So.2d 737 (Fla. 2d DCA 1984) (no founded suspicion when officer received tip that tall, black male was selling pot in front of a particular bar, and officers observed bulge in pocket of defendant sitting out front).


no founded suspicion when officer heard BOLO regarding an assault near a bar involving a black male with short, cropped hair, wearing white t-shirt and blue jeans, last seen heading north, and 25 minutes later, officer stopped defendant, who fit the description except that he had plaited hair and was heading south, because the description could have fit many people in the area


no founded suspicion when officer received tip that tall, black male was selling pot in front of a particular bar, and officers observed bulge in pocket of defendant sitting out front


Context: Before concluding, we note that, although the district court did not expressly state that it was dismissing Mr. Abernathy's petition for lack of jurisdiction, when a federal petitioner fails to establish that he has satisfied SS 2255(e)'s savings clause test -- thus, precluding him from proceeding under SS 2241 -- the court lacks statutory jurisdiction to hear his habeas claims.

concluding that the district court lacked jurisdiction over the petitioner's SS 2241 petition because he failed to meet the Fourth Circuit's savings clause test

See 28 U.S.C. § 2255(e) (“An application for a writ of habeas corpus ... shall not be entertained ... unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” (emphasis added)); Brace, 634 F.3d at 1169-70 (affirming the district court’s dismissal for lack of jurisdiction of a petitioner’s § 2241 petition, where the petitioner could not meet § 2255(e)’s savings clause); see also Rice v. Rivera, 617 F.3d 802, 807 (4th Cir.2010) (concluding that the district court lacked jurisdiction over the petitioner’s § 2241 petition because he failed to meet the Fourth Circuit’s savings clause test); Harrison v. Ollison, 519 F.3d 952, 961-62 (9th Cir.2008) (affirming the district court’s dismissal of a § 2241 petition for lack of jurisdiction because the petitioner failed to meet the Ninth Circuit’s savings clause test); cf. Palma-Sala-zar v. Davis, 677 F.3d 1031, 1038 (10th Cir.2012) (holding that a § 2241 petitioner’s claim was not cognizable under § 2241 and therefore the district court lacked jurisdiction).

affirming the district court's dismissal for lack of jurisdiction of a petitioner's SS 2241 petition, where the petitioner could not meet SS 2255(e


affirming the district court's dismissal of a SS 2241 petition for lack of jurisdiction because the petitioner failed to meet the Ninth Circuit's savings clause test


holding that a SS 2241 petitioner's claim was not cognizable under SS 2241 and therefore the district court lacked jurisdiction


Context: Courts that have applied the Knights test have done so, in part, because they interpreted the Supreme Court's decision in Knights as authorizing a general balancing test, rather than a special-needs test, when a person searched has a reduced expectation of privacy, regardless of whether the search is supported by individualized suspicion.

"Courts that have relied upon Knights as justifying the application of a general balancing test to DNA-indexing statutes have emphasized Knights's status as a probationer and his knowledge of the probation search condition, which reduced his expectation of privacy."

See, e.g., Kincade, 379 F.3d at 832 (reasoning that Knights affirmed the possibility that “conditional releasees’ diminished expectations of privacy may be sufficient to justify the judicial assessment of a parole or probation search’s reasonableness outside the strictures of special needs analysis”); see also Goord, 430 F.3d at 665 (“Courts that have relied upon Knights as justifying the application of a general balancing test to DNA-indexing statutes have emphasized Knights’s status as a probationer and his knowledge of the probation search condition, which reduced his expectation of privacy.”).

reasoning that Knights affirmed the possibility that "conditional releasees' diminished expectations of privacy may be sufficient to justify the judicial assessment of a parole or probation search's reasonableness outside the strictures of special needs analysis"


Context: Heartland chose instead to initiate the ordinary briefing process and to then file a full-throated opening brief that raised additional issues for our review beyond the contract-coverage dispute. Heartland's failure to reasonably mitigate the fees it incurred should factor into the court's decision to award fees for bad faith.

"An award [of fees] for obstinacy, although a penalty, is only for the unnecessary efforts occasioned by the obstinacy."

See Wright v. Jackson, 522 F.2d 955, 958 (4th Cir. 1975) (“An award [of fees] for obstinacy, although a penalty, is only for the unnecessary efforts occasioned by the obstinacy.”); cf. Leffler v. Meer, 936 F.2d 981, 987 (7th Cir. 1991) (noting “the duty to mitigate legal fees by promptly, where possible, disposing of baseless claims through summary procedures”); Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 879 (5th Cir. 1988) (factoring into fee award “the extent to which the nonviolating party’s expenses and fees could have been avoided or were self-imposed”).

noting "the duty to mitigate legal fees by promptly, where possible, disposing of baseless claims through summary procedures"


factoring into fee award "the extent to which the nonviolating party's expenses and fees could have been avoided or were self-imposed"


Context: Johnson asserts that the jurors' findings on various "mitigating factors" are against the weight of the evidence, and thus, that she is entitled to a new trial, in the "penalty phase," if not in all phases, pursuant to Rule 33(a). Again, the court may grant a new trial even where there is substantial evidence to sustain the verdict, if the court nevertheless finds that the verdict is against the weight of the evidence.

providing for a new trial "if the interest of justice so requires"

See Dodd, 391 F.3d at 934. However, the court does not find that the jury’s findings on the challenged “mitigating factors” were either against the weight of the evidence or that a “miscarriage of justice” will occur if the jury’s findings are allowed to stand. See Fed.R.Crim.P. 33(a) (providing for a new trial “if the interest of justice so requires”); see also Campos, 306 F.3d at 579 (interpreting the “interest of justice” requirement for a new trial under Rule 33(a) to mean that a “miscarriage of justice” would otherwise occur).

interpreting the "interest of justice" requirement for a new trial under Rule 33(a) to mean that a "miscarriage of justice" would otherwise occur


Context: Cases discussing the "due process" limitation on a court's inherent powers do not explicitly define the substantive content of those limitations. That said, however, the key factor in determining whether the entry of default violates due process appears to be whether the conduct for which default was entered related to the merits of the case, or only to a peripheral matter.

Cf. SEC v. Seaboard Corp., 666 F.2d 414, 416-17 (9th Cir.1982) (finding that default judgment against defendant for failure to pay a fine when the defendant had complied with an order to give a deposition was punitive and a violation of due process as the court could not presume that the case lacked merit).

upholding lower court's entry of default where appellant's perjury "infected all of the pretrial procedures and interfered egregiously with the court's administration of justice" and "greatly disadvantaged the plaintiffs who had planned their strategy and developed then-case to respond to [appellant's] false evidence"

See, e.g., TeleVideo, 826 F.2d at 917 (upholding lower court’s entry of default where appellant’s perjury “infected all of the pretrial procedures and interfered egregiously with the court’s administration of justice” and “greatly disadvantaged the plaintiffs who had planned their strategy and developed then-case to respond to [appellant’s] false evidence”).


Context: In fact, Walker's responsibilities specifically include both "[s]upervis[ing]" and "instructfing]" in order to "[c]om-plete[] assignments' using inmate labor." Nothing before us indicates that Walker exceeded the scope of his authority as that authority was defined by his supervisors and by the job description.

"A State agent is ... immune from civil liability for exercising judgment in supervising personnel."

See also Ex parte Spivey, 846 So.2d 322, 331 (Ala.2002) (“A State agent is ... immune from civil liability for exercising judgment in supervising personnel.”).

"State-agent immunity protects state employees, as agents of the State, in the exercise of their judgment in executing their work responsibilities."

Ex parte Hayles, 852 So.2d 117, 122 (Ala.2002) (“State-agent immunity protects state employees, as agents of the State, in the exercise of their judgment in executing their work responsibilities.”).


Context: As such, some states employ the reasonable doubt standard in determining the appropriateness of the death penalty. Others, however, have rejected the argument that the failure to require the jury to find that death is appropriate beyond a reasonable doubt renders a death penalty statute unconstitutional.

See, e.g., People v. Benson, 52 Cal.3d 754, 276 Cal.Rptr. 827, 802 P.2d 330, 362 (1990) (again rejecting claim that U.S. Constitution requires instruction that jury must find death is appropriate beyond a reasonable doubt).

See also State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264, 280 (1984) (jury need not be statutorily required to determine death penalty is appropriate where procedural safeguards ensure appropriateness).


Context: This vesting order, we are convinced, places Price's claim in respect of the Washington archive outside of the subject matter jurisdiction of the district court. In a brief and well-reasoned opinion, the D.C. Circuit has read this exception to prevent efforts by plaintiffs to use the Federal Tort Claims Act to circumvent the provisions of the Trading with the Enemy Act.

Gubbins v. United States, 192 F.2d 411 (D.C.Cir.1951) (rejecting a defamation claim based on the plaintiff being placed on a list of persons pursuant to the Trading with the Enemy Act that blocked them from engaging in certain transactions); see also Schilling v. Rogers, 363 U.S. 666, 674-76, 80 S.Ct. 1288, 1294-95, 4 L.Ed.2d 1478 (1960) (holding that the Trading with the Enemy Act’s provisions for judicial review are exclusive of any other remedy, and rejecting arguments that judicial review of actions taken under the Trading with the Enemy Act is available via the Administrative Procedure Act).

holding that the Trading with the Enemy Act's provisions for judicial review are exclusive of any other remedy, and rejecting arguments that judicial review of actions taken under the Trading with the Enemy Act is available via the Administrative Procedure Act


Context: As a "vessel of the United States," the MADAM CHAPEL was not governed by the state of New York's system for titling and recording of security interests. We agree with the Third Circuit that once a vessel has been federally documented, the validity of security interests is determined by federal law.

vessel becomes "vessel of the United States" when the completed Application for Documentation is received by the Coast Guard

In re Alberto, 823 F.2d 712, 716 (3d Cir.1987) (to permit state law to govern security interests in federally documented vessels would undermine congressional intent); see also Merchants National Bank of Mobile v. Ward Rig, No. 7, 634 F.2d 952, 956 (5th Cir.1981) (vessel becomes “vessel of the United States” when the completed Application for Documentation is received by the Coast Guard).


Context: As a result, neither the police officers' warrantless entry into Rush's yard or their subsequent observation of the beer and liquor containers through the basement window violated Rush's Fourth Amendment rights. Thus, we reject Rush's argument that the police officers' actions were improper.

holding that when a police officer observes something from an area where the officer is lawfully entitled to be, anything that is in "open view" may be observed without having to obtain a search warrant because making such "open view" observations does not constitute a search in the constitutional sense

See Trimble, 842 N.E.2d at 801 (recognizing that a police officer’s observation or inspection of contraband during the course of a legitimate investigation does not necessarily result in an unconstitutional search); see also Kendall v. State, 825 N.E.2d 439 (Ind.Ct.App.2005), ajfd in part and vacated in part on other grounds (holding that when a police officer observes something from an area where the officer is lawfully entitled to be, anything that is in “open view” may be observed without having to obtain a search warrant because making such “open view” observations does not constitute a search in the constitutional sense).

recognizing that a police officer's observation or inspection of contraband during the course of a legitimate investigation does not necessarily result in an unconstitutional search


Context: [P 21] Although much later in the course of the interrogation, the detectives stated that Holloway was not under arrest and not "in custody" in response to his inquiries, the detectives never stated to Holloway at any time prior to his formal arrest that he was free to leave or free to not answer their questions. The detectives immediately took control of the situation, dictated the terms of the questioning, and later in the interview indicated that someone could be sent to retrieve breakfast, while denying Holloway's request for beer.

noting "The Miranda court was deeply concerned with the effect of an incommunicado, police dominated atmosphere on a criminal suspect's will to resist self-incrimination during interrogation."

See Griffin, 922 F.2d at 1352 (noting “The Miranda court was deeply concerned with the effect of an incommunicado, police dominated atmosphere on a criminal suspect’s will to resist self-incrimination during interrogation.”); see also United States v. Johnson, 64 F.3d 1120, 1126 (8th Cir.1995) (noting a useful factor when making a determination of custody was “whether the atmosphere was police dominated”).

noting a useful factor when making a determination of custody was "whether the atmosphere was police dominated"


Context: 3. The district court properly denied Kalilikane an opportunity to continue his testimony, because of Kalilikane's disruptive behavior and the inadmissibility of Kalilikane's proffered testimony.

"[A] defendant can waive [the] right to testify through contumacious conduct."

See United States v. Pino-Noriega, 189 F.3d 1089, 1095 (9th Cir.1999) (“[A] defendant’s right to testify is not unduly restricted by rules limiting a defendant’s testimony to relevant matters ... ”) (citation omitted) (emphasis in the original); see also United States v. Johnson, 820 F.2d 1065, 1074 (9th Cir.1987) (“[A] defendant can waive [the] right to testify through contumacious conduct.”) (citation omitted).

"[A] defendant's right to testify is not unduly restricted by rules limiting a defendant's testimony to relevant matters ... "


Context: Exh. 26, P 16. The box provided on the form for "retaliation/reprisal" was not checked. At the time the administrative complaint was filed, plaintiff was represented by experienced counsel well-versed in the nuances of federal employment discrimination law, yet nowhere in the complaint does plaintiff even mention the terms "hostile work environment" or "retaliation." Moreover, this court's reading of the allegations asserted in Paragraph 15 of the administrative complaint reveals no facts to support a plausible Title VII claim based on hostile work environment or retaliation, or to support a finding that such claims might reasonably have fallen within the scope of the EEOC investigation.

hostile work environment exists "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."

See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (hostile work environment exists “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”) (citations and quotations omitted); see also Fleming v. Verizon New York, Inc., 419 F.Supp.2d 455, 463-64 (S.D.N.Y.2005) (EEOC charge containing no reference to hostile work environment found “inadequate to define the scope of the EEOC investigation and serve as the predicate for claims in a federal lawsuit.”); Gambrell v. Nat’l R.R. Passenger Corp., 2003 WL 282182, at *8 (S.D.N.Y. Feb. 3, 2003) (“mere the EEOC charge alleges discrimination but not retaliation, the reasonable scope of the agency’s investigation cannot be expected to encompass allegations of retaliatory motive.”).

EEOC charge containing no reference to hostile work environment found "inadequate to define the scope of the EEOC investigation and serve as the predicate for claims in a federal lawsuit."


"mere the EEOC charge alleges discrimination but not retaliation, the reasonable scope of the agency's investigation cannot be expected to encompass allegations of retaliatory motive."