evidence not suppressed where guest admitted police to apartment, police were not attempting to secure permission to search apartment but rather were responding to complaint to determine occupants' well-being, and search was conducted with defendant's consent


Context: "Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's 'castle' with the honest intent of asking questions of the occupant thereof -- whether the questioner be a pollster, a salesman, or an officer of the law."

defendant's eight year old daughter could consent to police entry, though not search

Davis v. United States, 327 F.2d 301, 303-304 (9th Cir. 1964) (defendant’s eight year old daughter could consent to police entry, though not search).

See also United States v. Kim, 27 F.3d 947, 949-950, 954 (3d Cir. 1994), cert. denied, 513 U.S. 1110 (1995) (no search or seizure when police questioned defendant at door of sleeping compartment in train). Contrast United States v. Jerez, 108 F.3d 684, 689-693 (7th Cir. 1997) (officer’s continuous knocking on hotel room door around 11:00 p.m. for over three minutes and asking defendant to open door to talk constituted an unconstitutional seizure).


officer's continuous knocking on hotel room door around 11:00 p.m. for over three minutes and asking defendant to open door to talk constituted an unconstitutional seizure


affirming lawfulness of officers' entry into front room of defendant's home where "the purpose of the entry was to engage in the conversation the agents had been seeking" and defendant knew of such purpose and consented to entry

See Manni v. United States, 391 F.2d 922, 923 (1st Cir.), cert. denied, 393 U.S. 873 (1968) (affirming lawfulness of officers’ entry into front room of defendant’s home where “the purpose of the entry was to engage in the conversation the agents had been seeking” and defendant knew of such purpose and consented to entry); Akron v. Harris, 93 Ohio App. 3d 378, 382 (1994) (third party may consent to entry but not to search); State v. Chapman, 97 Ohio App. 3d 687, 690 (1994) (“that where the intent of the officers was not to conduct a search, but only to question a resident, the consent of a third party to enter the house should not be held to the same standard as the consent of a third party to a warrant-less search of the house”); Commonwealth v. Netting, 315 Pa. Super. 236, 240-241 (1983) (evidence not suppressed where guest admitted police to apartment, police were not attempting to secure permission to search apartment but rather were responding to complaint to determine occupants’ well-being, and search was conducted with defendant’s consent).


third party may consent to entry but not to search


"that where the intent of the officers was not to conduct a search, but only to question a resident, the consent of a third party to enter the house should not be held to the same standard as the consent of a third party to a warrant-less search of the house"


Context: Coastal manufactured and supplied the GFRC panels that comprised the "skin" of the St. George. Suppliers of building components have been determined to be protected ac tors entitled to protection by the repose provision of SS 2B only where the role of supplier was incidental and the actor's primary function was to provide individual expertise and particularized services relating to design and construction.

defendant protected by SS 2B where its role of supplying bleachers was incidental to primary function of performing particularized construction services in assembling and installing bleachers

See McDonough v. Marr Scaffolding Co., 412 Mass. 636, 642 (1992) (defendant protected by § 2B where its role of supplying bleachers was incidental to primary function of performing particularized construction services in assembling and installing bleachers).

SS 2B protection extended to supplier of lift who provided individual expertise and particularized services, collaborated in design of lift, supervised installation, and specified and supervised building modifications

See also Rosario v. M.D. Knowlton Co., 54 Mass. App. Ct. at 802 (§ 2B protection extended to supplier of lift who provided individual expertise and particularized services, collaborated in design of lift, supervised installation, and specified and supervised building modifications).


Context: That exclusion sufficed in this case to vindicate the purpose of the rule. In so ruling, we leave open the question whether suppression would be necessary and proper at the sentencing phase where it is shown that the police acted egregiously, e.g., by undertaking a warrantless search for the very purpose of obtaining evidence to increase a defendant's sentence.

evidence excluded from sentencing consideration when search conducted without a warrant was "blatantly illegal," and court found that police needed to be deterred from making illegal searches under circumstances involved

See Verdugo v. United States, 402 F.2d 599, 611-13 (9th Cir.), cert. denied, 397 U.S. 925, 90 S.Ct. 931, 25 L.Ed.2d 105 (1968) (evidence excluded from sentencing consideration when search conducted without a warrant was “blatantly illegal,” and court found that police needed to be deterred from making illegal searches under circumstances involved); but see United States v. Vandemark, 522 F.2d 1019, 1022-25 (9th Cir. 1975) (limiting holding of Verdugo to cases in which use at sentencing of illegally seized evidence “would provide a substantial incentive for unconstitutional searches and seizures ”) (emphasis added).

limiting holding of Verdugo to cases in which use at sentencing of illegally seized evidence "would provide a substantial incentive for unconstitutional searches and seizures "


Context: Moreover, because an injured employee has been legislatively granted, in mandatory language, the unmitigated right to select and change his or her primary care provider during the course of treatment for an injury, we conclude that this right is not dependent upon a showing of medical necessity.

stating "[u]nder the managed care statute, the managed care plan must include a provision for the employee's selection of a primary care provider," and declaring that such right is "similar and parallel" to right to change in physician contained in section 440.13(2)(f

See Nunez v. Pulte Homes, Inc., 985 So.2d 695 (Fla. 1st DCA 2008) (concluding that statute providing injured employee mandatory right to change of physician during “the course of treatment” does not require employee to demonstrate medical necessity of change); see also Sunbelt Health Care v. Galva, 7 So.3d 556, 560-61 (Fla. 1st DCA 2009) (stating “[u]nder the managed care statute, the managed care plan must include a provision for the employee’s selection of a primary care provider,” and declaring that such right is “similar and parallel” to right to change in physician contained in section 440.13(2)(f) — a right not dependent on showing of medical necessity).

concluding that statute providing injured employee mandatory right to change of physician during "the course of treatment" does not require employee to demonstrate medical necessity of change


Context: P 14. In addition to the language of the statute, "scope, context, and purpose are perfectly relevant to a plain-meaning interpretation of an unambiguous statute."

Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶ 22, 309 Wis. 2d 541, 749 N.W.2d 581 ("A review of statutory history is part of a plain meaning analysis."); see also Heritage Farms, Inc. v. Markel Ins. Co., 2009 WI 27, ¶ 22, 316 Wis. 2d 47, 762 N.W.2d 652 ("By analyzing the changes the legislature has made over the course of several years, we may be assisted in arriving at the meaning of a statute.") (citation omitted).


Context: In reaching its conclusions on "fair valuation," the court may adopt the asset values of one party or the other, or the court may choose its own fair valuation figure after weighing all the evidence.

stating that if possible, insolvency determinations should be based on seasonable appraisals or expert testimony, but that "[b]ecause the value of property varies with time and circumstances, the finder of fact must be free to arrive at the 'fair valuation' defined in SS 101 [ (32

See, e.g., In re Roblin Indus. Inc., 78 F.3d 30, 35 (2d Cir.1996) (stating that if possible, insolvency determinations should be based on seasonable appraisals or expert testimony, but that “[b]ecause the value of property varies with time and circumstances, the finder of fact must be free to arrive at the ‘fair valuation’ defined in § 101 [ (32) ] by the most appropriate means.”); See also Syracuse Eng’g Co. v. Haight, 110 F.2d 468, 470 (2d Cir.1940) (upholding “middle course” that court took with respect to value of assets and liabilities).

upholding "middle course" that court took with respect to value of assets and liabilities


Context: We agree with the government and do not reach the merits of Reinke's claim because the state court applied an independent and adequate state procedural ground in ruling that the claim was procedurally defaulted.

stating that failure to comply with Arizona's contemporaneous objection rule bars litigation of the claim in federal courts absent a showing of cause and prejudice

See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (holding that federal review of claims is barred where those claims have been defaulted in state court pursuant to an independent and adequate state procedural rule unless the petitioner can demonstrate cause and prejudice); accord Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir.2003); see also Sturgis v. Goldsmith, 796 F.2d 1103, 1106 (9th Cir. 1986) (stating that failure to comply with Arizona’s contemporaneous objection rule bars litigation of the claim in federal courts absent a showing of cause and prejudice).


Context: Our review of those authorities reveals that several courts have concluded that there is no statutory or common-law right of allocution in a capital sentencing hearing.

State v. Perkins, 345 N.C. 254, 289, 481 S.E.2d 25 (“a defendant does not have a . . . statutory . . . or common law right to make unsworn statements of fact to the jury at the conclusion of a capital sentencing proceeding”), cert. denied, 522 U.S. 837, 118 S. Ct. 111, 139 L. Ed. 2d 64 (1997); Duckett v. State, 919 P.2d 7, 22 (Okla. Crim. App. 1995) (in capital case, court concluded that “there is no statutory . . . [or] common-law . . . right of a defendant to make a plea for mercy or otherwise address his sentencing jury, in addition to closing argument by counsel”), cert. denied, 519 U.S. 1131, 117 S. Ct. 991, 136 L. Ed. 2d 872 (1997); State v. Stephenson, 878 S.W.2d 530, 552 (Tenn. 1994) (“there is no statutory . . . [or] common-law . . . right to allocution in a capital case”); see United States v. Hall, 152 F.3d 381, 392-93 (5th Cir. 1998) (concluding that trial court did not violate former rule 32 [c] [3] [C] of Federal Rules of Criminal Procedure, which required court, before imposing sentence, to address defendant personally and to determine whether defendant wished to make statement or to present information in mitigation of sentence, when trial court denied defendant opportunity to make unsworn statement of remorse to capital sentencing jury but permitted defendant to make statement to court before it announced his sentence), cert. denied, 526 U.S. 1117, 119 S. Ct. 1767, 143 L. Ed. 2d 797 (1999); State v. Whitfield, 837 S.W.2d 503, 514 (Mo. 1992) (“the right of allocution in Missouri does not extend to addressing the jury”); Commonwealth v. Abu-Jamal, 521 Pa. 188, 212-13, 555 A.2d 846 (1989) (concluding that legislature had abrogated common-law rules governing capital cases by replacing them with statutory scheme and finding “no reason in law or logic” why defendants should be permitted to make unsworn statements to juries in capital sentencing hearings), cert. denied, 498 U.S. 881, 111 S. Ct. 215, 112 L. Ed. 2d 175 (1990).

"a defendant does not have a . . . statutory . . . or common law right to make unsworn statements of fact to the jury at the conclusion of a capital sentencing proceeding"


"the right of allocution in Missouri does not extend to addressing the jury"


concluding that legislature had abrogated common-law rules governing capital cases by replacing them with statutory scheme and finding "no reason in law or logic" why defendants should be permitted to make unsworn statements to juries in capital sentencing hearings


in capital case, court concluded that "there is no statutory . . . [or] common-law . . . right of a defendant to make a plea for mercy or otherwise address his sentencing jury, in addition to closing argument by counsel"


"there is no statutory . . . [or] common-law . . . right to allocution in a capital case"


Context: Here, according to the testimony of the officers, which the trial court found reliable, English's tag was not in compliance with the statute. As such, the officers had the authority to conduct a traffic stop in this case.

finding that police officers who were unable to read defendant's license plate because of a trailer hitch properly attached to the vehicle lacked authority to perform a traffic stop, because matters external to the tag, such as trailer hitches, bicycle racks, handicap chairs, u-hauls, and the like were not "other obscuring matter"

But see Harris v. State, 11 So.3d 462, 463-64 (Fla. 2d DCA 2009) (finding that police officers who were unable to read defendant’s license plate because of a trailer hitch properly attached to the vehicle lacked authority to perform a traffic stop, because matters external to the tag, such as trailer hitches, bicycle racks, handicap chairs, u-hauls, and the like were not “other obscuring matter”).

See Wright v. State, 471 So.2d 155, 156-57 (Fla. 3d DCA 1985) (finding that officer charged with enforcing motor vehicle laws had the duty and authority to investigate why a vehicle that was parked in the roadway had its license tag partially obscured with a dirty rag, in violation of the law).


Context: We are convinced that self-proclaimed "professionals" offering financial planning services, like Barrett and Papetti, are not the "learned professionals" identified by the court in Neveroski who are beyond the reach of the CFA. Although competing voluntary associations issue designations to those who seek to be called "financial planners," no governmental board or agency regulates or sets uniform minimum education or training criteria.

See Plemmons, supra, 387 N. J.Super. at 564, 904 A.2d 825 (professional or semi-professional suggests person is subject to testing, licensing and comprehensive regulation by relevant regulatory bodies); see also, Quigley v. Esquire Deposition Serv., 400 N.J.Super. 494, 507, 948 A.2d 665 (App.Div.2008) (federal depositions shorthand reporting services are not semi-professional because services are not subject to regulation under the state statute and regulations governing shorthand reporting).


Context: "The Supreme Court has applied the intelligible principle test to regulations that may be enforceable through criminal penalties."

"the Court has never expressly held that an intelligible principle alone suffices to save a putative delegation when the criminal law is involved."

Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 352, 72 L.Ed. 624 (1928); but see Nichols, 784 F.3d 666, 672 (10th Cir.2015) (“the Court has never expressly held that an intelligible principle alone suffices to save a putative delegation when the criminal law is involved.”)); Carter, 736 F.3d at 734 (describing O’Hagan as “hon- or[ing] the principle that “greater congressional specificity [may be ] required in the criminal context.” ” (Sutton, J., concurring opinion)(emphasis added) (citation omitted)).

"The Supreme Court has never rejected the intelligible principle test in the criminal context."

United States v. Nichols, 784 F.3d 666, 672 (10th Cir.2015) (citing United States v. O’Hagan, 521 U.S. 642, 695 n. 10, 117 S.Ct. 2199, 138 L.Ed.2d 724 (1997) and Yakus v. United States, 321 U.S. 414, 424-25, 64 S.Ct. 660, 88 L.Ed. 834 (1944)); see United States v. Hill, 896 F.Supp. 1057, 1062 (D.Colo.1995) (“The Supreme Court has never rejected the intelligible principle test in the criminal context.”) (citing Mistretta, Yakus, and J.W.


Context: Even if the rationale underlying the going and coming rule did not exclude Nichols, the third enumerated exception to that rule would.

LeWhite Constr. Co. v. Dunn, 211 Va. 279, 282, 176 S.E.2d 809, 813 (1970) (where the employee on his way to or from work is still charged with some duty or task in connection with his employment); Kent v. Virginia- Carolina Chemical Co., 143 Va. at 66, 129 S.E. at 331; see also Peterson v. Workmen's Compensation Appeal Board, 597 A.2d 1116, 1120 (Pa. 1991) (licensed practical nurse employed by nursing agency injured in automobile accident on way to work at hospital where sent by agency).


Context: There is another deficiency in the record that also precludes a finding that Kirkpatrick's waiver was valid. 'Where courts have previously found waivers of habeas claims to be knowing, voluntary, and intelligent, and therefore valid, they have done so after a hearing at which the court conducts a colloquy to assess the petitioner's intentions and whether he understands the consequences of the waiver.

See, e.g., Demosthenes, 495 U.S. at 732-33, 110 S.Ct. 2223 (concluding that a state court waiver was valid only after that court questioned the petitioner under oath and concluded specifically that the waiver was intelligently executed); Dennis, 378 F.3d at 884 (accepting a state court waiver as valid because that court “engaged in a comprehensive colloquy” with the petitioner during which “[t]he court had [petitioner] re-read his initial habeas petition ... and the court reviewed with [petitioner] the assignments of error alleged in the petition” and the petitioner in court “asserted his desire to give up his right to pursue each of these claims”); Fahy, 516 F.3d at 183-85 (holding that even though the state court did engage in a colloquy with the petitioner, that colloquy was insufficient to establish that the waiver was knowing and voluntary because the state court had refused to permit petitioner’s counsel to ask him questions that would probe the waiver’s validity); see also St. Pierre v. Cowan, 217 F.3d 939, 947 (7th Cir. 2000) (finding that a waiver was not valid because no court ever had a chance to question the petitioner on the record as to his intentions and understanding).


accepting a state court waiver as valid because that court "engaged in a comprehensive colloquy" with the petitioner during which "[t]he court had [petitioner] re-read his initial habeas petition ... and the court reviewed with [petitioner] the assignments of error alleged in the petition" and the petitioner in court "asserted his desire to give up his right to pursue each of these claims"


holding that even though the state court did engage in a colloquy with the petitioner, that colloquy was insufficient to establish that the waiver was knowing and voluntary because the state court had refused to permit petitioner's counsel to ask him questions that would probe the waiver's validity


Context: The district court properly dismissed Hayes' action because the allegations in Hayes' amended complaint demonstrate that, even if his access to the law library was deficient, he did not sustain an actual injury as a result of defendants' conduct.

holding that an "actual injury consists of some specific instance in which an inmate was actually denied access to the courts"

See Letvis v. Casey, 518 U.S. 343, 351-53, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (holding that there is no abstract freestanding right to a law library, and a prisoner must demonstrate that his efforts to pursue a non-frivolous legal claim were hindered); see also Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir.1989) (holding that an “actual injury consists of some specific instance in which an inmate was actually denied access to the courts”).


Context: As a result, all that remains of either part of Marks's claim is a theory that the Company's delay in granting his requests denied him a reasonable accommodation. To be sure, an employer's "unreasonable" delay may constitute the denial of an accommodation in some circumstances.

suggesting there are situations where "a long-delayed accommodation" could be considered "unreasonable" and hence "actionable under the ADA"

Valle-Arce v. Puerto Rico Ports Auth., 651 F.3d 190, 200 (1st Cir. 2011); Astralis Condo. Ass’n v. Sec’y, U.S. Dep’t of Hous. & Urban Dev., 620 F.3d 62, 68-69 (1st Cir. 2010) (holding condominium association’s delay of more than a year in deciding on request for designated handicapped parking spaces constituted a denial of accommodation request); see also Mogenhan v. Napolitano, 613 F.3d 1162, 1168 (D.C. Cir. 2010) (suggesting there are situations where “a long-delayed accommodation” could be considered “unreasonable” and hence “actionable under the ADA”) (quoting Mayers v. Laborers’ Health & Safety Fund, 478 F.3d 364, 368 (D.C. Cir. 2007)).

holding condominium association's delay of more than a year in deciding on request for designated handicapped parking spaces constituted a denial of accommodation request


Context: We agree with Alvarado-Casas that it was error for the, district court to inform him that he faced only a ten-year maximum sentence, and that the error was clear and obvious.

"[A] plain reading of Rule 11 requires the district court to inform the defendant of the ... maximum possible penalty applicable to each count to which the defendant is pleading guilty."

See United States v. Still, 102 F.3d 118, 123 (5th Cir.1996) (“[A] plain reading of Rule 11 requires the district court to inform the defendant of the ... maximum possible penalty applicable to each count to which the defendant is pleading guilty.”); see also United States v. Toruno, 229 Fed.Appx. 296, 297 (5th Cir.2007) (per curiam) (“The parties do not dispute that the district court incorrectly admonished [the defendant] regarding the maximum term of imprisonment and that the error was clear and obvious.”).

"The parties do not dispute that the district court incorrectly admonished [the defendant] regarding the maximum term of imprisonment and that the error was clear and obvious."


Context: App., Vol. II at 343. It does not appear from the record that Dr. Todd examined claimant; even if he did, his statement is conclusory and unsupported. Dr. Todd's brief report does not discuss or reference any supporting clinical data, or provide any explanation for his assertion that claimant's symptoms are disproportionate to the medical findings.

a "physician's opinion [may] be rejected if it is brief, conclusory, and unsupported by medical evidence."

See Frey v. Bowen, 816 F.2d 508, 513 (10th Cir.1987) (a “physician’s opinion [may] be rejected if it is brief, conclusory, and unsupported by medical evidence.”); see also Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.1992) (evidence is not substantial if it really constitutes not evidence but -mere conclusion).


Context: It does not "propose a commercial transaction" and is therefore not commercial speech. Because it is not commercial speech, the book is entitled to the full panoply of First Amendment protections.

speech at issue not "commercial speech," and therefore entitled to full First Amendment protection

Hoffman, 255 F.3d at 1185-86 (speech at issue not “commercial speech,” and therefore entitled to full First Amendment protection); cf. Dawning v. Abercrombie & Fitch, 265 F.3d 994, 1002 & n. 2 (9th Cir.2001) (Abercrombie’s catalog, which used the plaintiffs photograph without permission to promote its clothing, was “commercial in nature and, therefore, not entitled to the full First Amendment protection”).

Abercrombie's catalog, which used the plaintiffs photograph without permission to promote its clothing, was "commercial in nature and, therefore, not entitled to the full First Amendment protection"


Context: Indeed, as counsel conceded at oral argument, Appellees have taken an oath to enforce Minnesota law. Appellants "are thus not without some reason in fearing prosecution" should they make the political expenditures that they propose.

holding that fear of prosecution was not imaginary or speculative, even though the challenged criminal penalty provision had never been applied to plaintiffs' proposed conduct, where statute on its face proscribed the proposed conduct and where "the State has not disavowed any intention of invoking the criminal penalty provision"

Babbitt, 442 U.S. at 302, 99 S.Ct. 2301 (holding that fear of prosecution was not imaginary or speculative, even though the challenged criminal penalty provision had never been applied to plaintiffs’ proposed conduct, where statute on its face proscribed the proposed conduct and where “the State has not disavowed any intention of invoking the criminal penalty provision”); see also Butler, 146 F.3d at 560 (holding that plaintiffs had standing to challenge the constitutionality of various provisions in Arkansas’s campaign finance law even though plaintiffs had neither violated the law nor been directly threatened with prosecution under the law); N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 12-15 (1st Cir.1996) (determining that political action committee had standing to challenge New Hampshire campaign finance limits even though New Hampshire’s Attorney General had informed plaintiff that the state would not enforce the law).

holding that plaintiffs had standing to challenge the constitutionality of various provisions in Arkansas's campaign finance law even though plaintiffs had neither violated the law nor been directly threatened with prosecution under the law


determining that political action committee had standing to challenge New Hampshire campaign finance limits even though New Hampshire's Attorney General had informed plaintiff that the state would not enforce the law


Context: Neither has McDonough produced evidence to support her contention that she was substantially limited in her ability to stand. It is undisputed that she could stand for one hour a day and intermittently for four hours a day. She was also able to perform all of the following activities, each of which involves standing: vacuuming, doing laundry, putting dishes in the dishwasher, mowing, baking, and gardening. Consequently, we cannot agree with McDonough's claim that she was substantially limited in her ability to stand and therefore, disabled.

See, e.g., Neal, 379 Fed.Appx. at 634 (holding that plaintiffs inability to stand more than two hours was insufficient, as a matter of law, to prove that she was disabled); see also Dupre v. Charter Behavioral Health Sys. of Lafayette Inc., 242 F.3d 610, 614 (5th Cir.2001) (holding that plaintiffs inability to stand for more than one hour did not render her disabled).


Context: After reviewing the record, we find that Eggink's action lacks an arguable legal basis and is thus frivolous. With respect to Storm-Eggink's claim pursuant to 42 U.S.C. SS 1983, it is clear that her arrest for possession of marijuana did not deprive her of a constitutional right.

See United States v. Kiffer, 477 F.2d 349, 352 (2d Cir.1973); see also United States v. Fry, 787 F.2d 903, 905 (4th Cir.1986) (“There is no fundamental right to produce or distribute marijuana commercially.”); United States v. Fogarty, 692 F.2d 542, 547 (8th Cir.1982) (“[Tjhere is no fundamental constitutional right to import, sell, or possess marijuana ----”); cf. United States v. Greene, 892 F.2d 453, 454 (6th Cir.1989) (holding that possession of marijuana is not protected by the free exercise clause of the First Amendment); United States v. Middleton, 690 F.2d 820, 825-26 (11th Cir.1982) (same).

"There is no fundamental right to produce or distribute marijuana commercially."


"[Tjhere is no fundamental constitutional right to import, sell, or possess marijuana ----"


Context: The Board has argued that giving effect to the arbitrator's decision in this case would run afoul of the principle that waivers of employee rights must be undertaken in "clear and unmistakable" terms.

clear and unmistakable waiver of right to strike over administration of pension fund held unnecessary where general contract term extended scope of no-strike clause beyond scope of arbitration clause

But cf. Pacemaker Yacht Co. v. NLRB, 663 F.2d 455, 458-59 (3d Cir. 1981) (clear ánd unmistakable waiver of right to strike over administration of pension fund held unnecessary where general contract term extended scope of no-strike clause beyond scope of arbitration clause).

absent explicit waiver of right to strike in protest of employer's unfair labor practices, such right is not waived

Cf. Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 281-83, 76 S.Ct. 349, 357-358, 100 L.Ed. 309 (1956) (absent explicit waiver of right to strike in protest of employer’s unfair labor practices, such right is not waived).


But cf. Pacemaker Yacht Co. v. NLRB, 663 F.2d 455, 458-59 (3d Cir. 1981) (clear and unmistakable waiver of right to strike over administration of pension fund held unnecessary where general contract term extended scope of no-strike clause beyond scope of arbitration clause).


Context: Simpson, 880 So.2d at 1051 (P 14) (holding plaintiff can prove foreseeability by showing "the defendant had actual or constructive knowledge of the assailant's violent nature"). We note California's foreseeability test for spouses of child molesters is actual knowledge.

holding the test for foreseeability is whether the wife knew or should have known of her husband's proclivities

But see Doe v. Franklin, 930 S.W.2d 921, 928 (Tex.Ct.App.1996) (holding the test for foreseeability is whether the wife knew or should have known of her husband’s proclivities).

adopting the "particularized foreseeability" test for spouses of child molesters, "a standard of foreseeability ... that is based on 'particular knowledge' or 'special reason to know'"

Chaney, 46 Cal.Rptr.2d at 76 (quoting Uccello v. Laudenslayer, 44 Cal.App.8d 504, 118 Cal.Rptr. 741, 748 n. 4 (1975)) (“Only where the circumstances are such that the defendant ‘must have known’ and not ‘should have known’ will an inference of actual knowledge be permitted.”); see also J.S. v. R.T.H., 155 N.J. 330, 714 A.2d 924, 930 (1998) (adopting the “particularized foreseeability” test for spouses of child molesters, “a standard of foreseeability ... that is based on ‘particular knowledge’ or ‘special reason to know’”) (citations omitted).


Context: Because the contested matter and the adversary proceeding were consolidated "for all purposes," the sixty-day limit governing the contested matter extends to the entire consolidated case.

See In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir.1987) (finding that where the United States was a party to one case, the sixty-day rule applied to the other case if the cases were consolidated); cf. Bay State HMO Mgmt., Inc. v. Tingley Sys., Inc., 181 F.3d 174, 182 (1st Cir.1999) (holding that consolidated cases should be treated as single action for purposes of determining res judicata).


Context: The City's method with regard to the timing of sound measurements, i.e., ten seconds for source sound, thirty seconds for ambient noise level, is not so arbitrary as to be inherently inconsistent with valid time, place and manner regulations.

"So long as the means chosen are not substantially broader than necessary to achieve the government's interest ..., the regulation will not be invalid simply because a court concludes that the government's interest could adequately be served by some less-speech-restrictive alternative."

See Ward, 491 U.S. at 800, 109 S.Ct. 2746 (“So long as the means chosen are not substantially broader than necessary to achieve the government’s interest ..., the regulation will not be invalid simply because a court concludes that the government’s interest could adequately be served by some less-speech-restrictive alternative.”); see also Johnson v. Bax, 63 F.3d 154, 158 (2d Cir.1995) (government’s limited discretion in regulating the use of its streets must be exercised uniformly and systematically so as not to create any unfair discrimination).

government's limited discretion in regulating the use of its streets must be exercised uniformly and systematically so as not to create any unfair discrimination


Context: "Successful claims have arisen from unfavorable zoning decisions, withholding of permits, and selective regulatory enforcement." The Supreme Court has held, however, that "the class-of-one theory of equal protection has no application in the public employment context."

"[T]he class-of-one theory is not legally cognizable where ... a public employee claims that she has been treated differently than other employees."

See Kelley v. City of Albuquerque, 542 F.3d 802, 821 (10th Cir.2008) ( “[T]he class-of-one theory is not legally cognizable where ... a public employee claims that she has been treated differently than other employees.”); Duprey v. Twelfth Judicial Dist. Court, No. CIV 08-0756 JB, 2009 WL 2105955, at *5 (D.N.M. June 22, 2009) (Browning, J.)(“In this case, Duprey, who is a public employee, is alleging that she was denied a promotion and was demoted.

reasoning that "an allegation of arbitrary differential treatment could be made in nearly every instance" of a personnel decision by the government, and "government offices could not function if every employment decision became a constitutional matter"

Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 607-08, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (reasoning that “an allegation of arbitrary differential treatment could be made in nearly every instance” of a personnel decision by the government, and “government offices could not function if every employment decision became a constitutional matter”).


Context: . The injection of parole is more serious and plainly prejudicial if the prosecutor also speculates as to what a defendant might do if released from jail.

prosecutor remark "give him life, so he can get paroled one day and kill somebody else ..." was improper

Commonwealth v. Clayton, 516 Pa. 263, 284, 532 A.2d 385, 396-97 (1987) (not improper statement by prosecutor since it did not refer to what defendant would do if released and reference to parole was in response to argument made by defendant's counsel at closing); See also Commonwealth v. Hall, 523 Pa. 75, 90-91, 565 A.2d 144, 152 (1989) (prosecutor remark "give him life, so he can get paroled one day and kill somebody else ...” was improper); Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984) (improper remark by prosecutor since he explicitly referred to possible parole and that Floyd would kill again if released since he was a "predator”); Commonwealth v. Aljoe, 420 Pa. 198, 208-09, 216 A.2d 50, 55-56 (1966) (improper remark where prosecutor specifically mentioned eligibility for parole and that defendant could commit crime if released). However, the prosecutor made no such remarks in this case.


improper remark by prosecutor since he explicitly referred to possible parole and that Floyd would kill again if released since he was a "predator"


improper remark where prosecutor specifically mentioned eligibility for parole and that defendant could commit crime if released


Context: U.S. 6,265,055 C2 col. 3 ll. 34-35. The district court construed "resin additive" to be "a substance that by its properties is not typically by itself formed into a stretch wrap film layer and that is compounded into a resin"' -- i.e., a non-resin substance.

noting that "[a]lthough 'consisting of' is a term of restriction, the restriction is not absolute" and may permit impurities or "additional components or steps that are unrelated to the invention"

See Conoco, 460 F.3d at 1360 (noting that "[a]lthough 'consisting of' is a term of restriction, the restriction is not absolute” and may permit impurities or "additional components or steps that are unrelated to the invention”); see also Norian, 363 F.3d at 1331 (holding that "while 'consisting of' limits the claimed invention, it does not limit aspects unrelated to the invention”).

holding that "while 'consisting of' limits the claimed invention, it does not limit aspects unrelated to the invention"


Context: (Countercl. PP 201, 227, 236.) Such allegations, without more, are inadequate.

holding that "plaintiffs' bare allegations of malice do not suffice, particularly where such allegations are contradicted by plaintiffs' own claims that defendants' actions were financially [motivated]"

See Rather v. CBS Corp., 68 A.D.3d 49, 886 N.Y.S.2d 121, 128 (N.Y.App.Div., 1st Dep’t, 2009) (finding “bare allegations of malice” to be insufficient “to bring the [tortious interference] claim under an exception to the economic interest rule”); see also Ruha v. Guior, 277 A.D.2d 116, 717 N.Y.S.2d 35, 36 (N.Y.App. Div., 1st Dep’t, 2000) (holding that “plaintiffs’ bare allegations of malice do not suffice, particularly where such allegations are contradicted by plaintiffs’ own claims that defendants’ actions were financially [motivated]”).

finding "bare allegations of malice" to be insufficient "to bring the [tortious interference] claim under an exception to the economic interest rule"


Context: Not only did Green fail to renew his motion for a change of venue once the court took it under advisement, he also implicitly consented to the seating of the jury in this case.

holding defendant implicitly consented to trial court's declaration of a mistrial

Cf. Commonwealth v. Washington, 263 Va. 298, 304, 559 S.E.2d 636, 639 (2002) (holding defendant implicitly consented to trial court’s declaration of a mistrial); but cf. King v. Commonwealth, 264 Va. 576, 577-78, 570 S.E.2d 863, 863-64 (2002) (holding defendant did not expressly or implicitly waive objection raised in motion to strike the evidence when defendant later did not object to a jury instruction covering the same issue).


Context: Both parties have submitted that the Merriam-Webster Online Dictionary definition of "fence" should control. After exploring the meaning of fence in our case law and the case law of other jurisdictions, we find that the Merriam-Webster Online Dictionary definition accurately reflects the plain meaning of the word "fence."

describing a fence as "evidence of the fact of occupancy" in an adverse possession case

See, e.g., State v. Williams, 209 W.Va. 25, 31, 543 S.E.2d 306, 312 (2000) (stating that remnants of a fence can be introduced as evidence for use in determining the location of a property line); Dustin v. Miller, 180 W.Va. 186, 189-90, 375 S.E.2d 818, 821-22 (1988) (discussing whether a strand of barbed wire strung between trees, described in the ease as a fence, created a notorious boundary line); Crim v. England, 46 W.Va. 480, 486, 33 S.E. 310, 312 (1899) (explaining that the purpose of the fence built in the case was to “supply certainty as to the land intended to be given”); see also Ewing v. Burnet, 36 U.S. 41, 46, 11 Pet. 41, 9 L.Ed. 624 (1837) (describing a fence as “evidence of the fact of occupancy” in an adverse possession case); United States v. Sarno, 24 F.3d 618, 623 (4th Cir.1994) (describing a four feet high physical perimeter barrier as a fence); Burke v. Ski Am., Inc., 940 F.2d 95, 98 (4th Cir.1991) (describing plastic webbing as a fence, the purpose of which is to warn skiers of stones and trees, not to provide a protective barrier).


describing a four feet high physical perimeter barrier as a fence


describing plastic webbing as a fence, the purpose of which is to warn skiers of stones and trees, not to provide a protective barrier


discussing whether a strand of barbed wire strung between trees, described in the ease as a fence, created a notorious boundary line


explaining that the purpose of the fence built in the case was to "supply certainty as to the land intended to be given"


Context: Plaintiffs seek to invoke the Marsh analysis, however, by relying on a long history, over one hundred years, of including an invocation and benediction at the Onawa graduation ceremonies. Nevertheless, a practice, however long maintained, does not automatically bring a case into the Marsh exception.

"standing alone, historical patterns cannot justify contemporary violations of constitutional guaran-tees_"

See Marsh, 463 U.S. at 790, 103 S.Ct. at 3335 (“standing alone, historical patterns cannot justify contemporary violations of constitutional guaran-tees_”); see also Jager v. Douglas County School Dist., 862 F.2d 824, 828 (11th Cir.1989) (“because Marsh was based on more than two hundred years of the ‘unique history’ of legislative invocations, it has no application to the case at bar.”); Carter v. Broadlawns Medical Center, 857 F.2d 448, 453 (8th Cir.1988) (“nor is Broad-lawns’ evidence of relatively long-standing practices in Iowa sufficient to win the day under Marsh, since Marsh made it clear that the mere fact that a practice has been carrying on for a long time is not determi-native_”).

"because Marsh was based on more than two hundred years of the 'unique history' of legislative invocations, it has no application to the case at bar."


"nor is Broad-lawns' evidence of relatively long-standing practices in Iowa sufficient to win the day under Marsh, since Marsh made it clear that the mere fact that a practice has been carrying on for a long time is not determi-native_"


Context: Defendants maintain that we should join those circuits that have held that this testimony now is sufficiently reliable in general to go to the jury, but which decide on the particular facts of the case whether or not to admit the evidence.

See, e.g., United States v. Moore, 786 F.2d 1308, 1311-13 (5th Cir.), reh’g denied, 791 F.2d 928 (5th Cir.1986) (en banc) (although this type of testimony was formally considered inadmissible, it now is appropriate for consideration by the jury); United States v. Downing, 753 F.2d 1224, 1242-43 (3d Cir.1985) (even if the admission of this testimony otherwise satisfies Rule 702 (which should be determined after an on-the-record detailed proffer), it still can be excluded under Rule 403); United States v. Smith, 736 F.2d 1103 (6th Cir.), cert. denied, 469 U.S. 868, 105 S.Ct. 213, 83 L.Ed.2d 143 (1984) (although this type of testimony was formally considered inadmissible, it now is appropriate for consideration by the jury; however, exclusion of this testimony in this case was harmless error); but see United States v. Christophe, 833 F.2d 1296 (9th Cir.1987) (adheres to view that this type of testimony is unreliable).


even if the admission of this testimony otherwise satisfies Rule 702 (which should be determined after an on-the-record detailed proffer


Context: If the conduct of a defendant that supports personal jurisdiction is related to a stated cause of action, personal jurisdiction is known as "specific jurisdiction."

"It is well settled that specific jurisdiction may arise without the nonresident defendant's ever stepping foot upon the forum state's soil"

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (holding that a defendant establishes minimum contacts by purposely engaging in conduct directed toward the forum state “such that [the defendant] should reasonably anticipate being haled into court there”); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958); see also Bullion v. Gillespie, 895 F.2d 213, 216 (5th Cir.1990) (“It is well settled that specific jurisdiction may arise without the nonresident defendant’s ever stepping foot upon the forum state’s soil”).

holding that a defendant establishes minimum contacts by purposely engaging in conduct directed toward the forum state "such that [the defendant] should reasonably anticipate being haled into court there"


Context: The PCOA filed a Reply to the FHCSD's Objections to the R & R, again emphasizing any award of attorneys' fees is wholly discretionary.

an Americans With Disabilities Act case confirming the court can award "low fees or no fees" without reciting the twelve Kerr factors, but concluding in that case the plaintiff obtained more than a "technical victory," and so was entitled to a fee award the court should have computed as a lodestar figure

Farrar, 506 U.S. at 115, 113 S.Ct. 566 (affirming denial of any attorneys’ fee award under the civil rights statute where plaintiffs sought millions in compensatory damages and recovered nominal damages of one dollar, confirming the court has discretion to award no fees without reciting the several factors bearing on reasonableness); see also Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119, 1121-22 (9th Cir.2000) (an Americans With Disabilities Act case confirming the court can award “low fees or no fees” without reciting the twelve Kerr factors, but concluding in that case the plaintiff obtained more than a “technical victory,” and so was entitled to a fee award the court should have computed as a lodestar figure).

affirming denial of any attorneys' fee award under the civil rights statute where plaintiffs sought millions in compensatory damages and recovered nominal damages of one dollar, confirming the court has discretion to award no fees without reciting the several factors bearing on reasonableness


Context: This conclusion is supported by recent decisions applying the reasoning of BFP to state tax foreclosure sales.

applies BFP rule to find that purchase price in New Jersey tax foreclosure sale was "reasonably equivalent value" for the debtor's interest in the property under 11 U.S.C. SS 548(a

See In re McGrath, 170 B.R. 78 (Bankr.D.N.J.1994) (applies BFP rule to find that purchase price in New Jersey tax foreclosure sale was “reasonably equivalent value” for the debtor’s interest in the property under 11 U.S.C. § 548(a)(2)(A)); In re T.F. Stone Companies, Inc., 170 B.R. 884 (Bankr.N.D.Tex.1994) (BFP rationale is likewise compelling in concluding that price obtained at properly-conducted, noncollusive tax foreclosure sale presumptively meets the “present fair equivalent value” standard in § 549(c)); but see In re Butler, 171 B.R. 321 (Bankr.N.D.Ill.1994) (notwithstanding BFP, adherence to state law procedures with respect to a tax sale does not preclude an investigation as to whether the debtor received less than “reasonably equivalent value” for her property).

notwithstanding BFP, adherence to state law procedures with respect to a tax sale does not preclude an investigation as to whether the debtor received less than "reasonably equivalent value" for her property


BFP rationale is likewise compelling in concluding that price obtained at properly-conducted, noncollusive tax foreclosure sale presumptively meets the "present fair equivalent value" standard in SS 549(c


Context: Rather, the Fix only presents the State with a simple choice: either enforce the ACA's market requirements or don't-- the very same choice put to the states by the ACA itself. But merely being put a choice does not give rise to a legally cognizable injury.

requiring a state merely to "consider" federal proposals does "not threaten the States' 'separate and independent existence! and [does] not impair' the ability of the States 'to function effectively in a federal system' "

See Mellon, 262 U.S. at 480, 482, 43 S.Ct. 597 (finding no “justiciable controversy” where the statute did not “require the states to do or to yield anything”); cf. FERC v. Mississippi, 456 U.S. 742, 765-66, 102 S.Ct. 2126, 72 L.Ed.2d 532 (1982) (requiring a state merely to “consider” federal proposals does “not threaten the States’ ’separate and independent existence! and [does] not impair’ the ability of the States ’to function effectively in a federal system’ ”) (citations omitted).

finding no "justiciable controversy" where the statute did not "require the states to do or to yield anything"


Context: "However, such language does not mean the matter is committed exclusively to agency discretion." "[L]anguage allowing for discretion does not create unlimited discretion____ Thus, courts routinely conclude that judicial review is available notwithstanding statutory language that seemingly allows for unlimited discretion."

"Though the language of 32 CFR SS 1625.2 is permissive, it does not follow that a board may arbitrarily refuse to reopen a registrant's classification."

Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 348 (4th Cir.2001) (citation omitted) (finding regulation providing that the Provider Reimbursement Review Board “may dismiss” an appeal was reviewable); cf. Mulloy v. United States, 398 U.S. 410, 415, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970) (“Though the language of 32 CFR § 1625.2 is permissive, it does not follow that a board may arbitrarily refuse to reopen a registrant’s classification.”).

finding regulation providing that the Provider Reimbursement Review Board "may dismiss" an appeal was reviewable


Context: Under Skilling, bribery remains a basis for honest services fraud. It is apparent from the jury's findings regarding bribery that the Defendants would have been convicted on the bribery theory of honest services fraud by itself. The references to the invalidated conflict of interest theory in the jury instructions and the government's argument at trial therefore did not prejudice Defendants.

explaining that prejudice requires a "reasonable probability" that the error in the instructions "affected the outcome of the trial"

United States v. Wilkes, 662 F.3d 524, 544 (9th Cir.2011) (holding that “the jury’s guilty verdict on the separate substantive count of bribery [under federal law] confirms beyond any reasonable doubt that the jury would have convicted [the defendant] of honest services fraud if the court’s definition had been limited to the bribery basis that Skilling expressly approved”); see also United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (explaining that prejudice requires a “reasonable probability” that the error in the instructions “affected the outcome of the trial”).

holding that "the jury's guilty verdict on the separate substantive count of bribery [under federal law] confirms beyond any reasonable doubt that the jury would have convicted [the defendant] of honest services fraud if the court's definition had been limited to the bribery basis that Skilling expressly approved"


Context: Edwards. Courts have held, however, that where a party can demonstrate an agent's "actual authority," it is not necessary for that party to have known of it or relied on it when dealing with the agent.

holding evidence also established bank's reliance on existing power of attorney

See Wood v. Crocker First Nat’l Bank, 107 Cal.App. 685, 291 P. 221, 222-23 (1930) (holding evidence also established bank’s reliance on existing power of attorney); see also Milliken Group, Inc. v. Hays Nissan, Inc., 86 S.W.3d 564, 567 (Tenn.Ct.App.2001) (“If an agent acts with actual authority, then he may bind the principal in contract regardless of whether the third party is actually aware of that authority at the time of the transaction.”); St. Gaudens v. Southeast Bank, N.A., 559 So.2d 1259, 1260-61 (Fla.Dist.Ct.App.1990) (agreeing it is irrelevant whether third-party relied on or knew about existence of the power of attorney because third-party reliance is a relevant consideration only in cases of apparent authority, not actual authority); Myers v. Stephens, 233 Cal.App.2d 104, 43 CaLRptr. 420, 429 (1965) (“Where the agent acts within the scope of his actual authority, it is immaterial whether or not an inquiry into the extent of the authority has been made by a person dealing with the agent.”).

"If an agent acts with actual authority, then he may bind the principal in contract regardless of whether the third party is actually aware of that authority at the time of the transaction."


"Where the agent acts within the scope of his actual authority, it is immaterial whether or not an inquiry into the extent of the authority has been made by a person dealing with the agent."


Context: Plaintiffs assertion that he satisfied the exhaustion requirement by sending supplemental letters to Kielt is unpersuasive. Indeed, "[c]ourts have rejected the argument that allegations made to EEOC officers but not included in the actual charge should be deemed 'reason ably related' to the charge." Further, because only the charge is forwarded to the employer, "courts will not consider" claims presented in separate documents when determining whether administrative remedies have been exhausted.

Sussle v. Sirina Prot. Sys. Corp., 269 F.Supp.2d 285, 315 (S.D.N.Y.2003); see also Novitsky v. Am. Consulting Eng’rs, LLC, 196 F.3d 699, 702 (7th Cir.1999) (plaintiff failed to exhaust administrative remedies where the EEOC charge did not include the claim, even though the claim was described in an EEOC intake questionnaire); cf. Morris v. David Lerner Assocs., 680 F.Supp.2d 430, 437 (E.D.N.Y.2010) (allegations in letter physically attached to the EEOC charge were reasonably related to subsequent claims brought in federal court as evidenced by EEOC’s explicit reference to these allegations in the right to sue letter).

allegations in letter physically attached to the EEOC charge were reasonably related to subsequent claims brought in federal court as evidenced by EEOC's explicit reference to these allegations in the right to sue letter


Context: With one exception, the courts not allowing felony murder to be based on assault-motivated - burglaries - construed - differently phrased statutes. Those statutes required that death occur both in the course of and in furtherance of the burglary.

Williams, 818 A.2d at 913 ("the murder, although 'in the course of the burglary, was not carried out 'in furtherance of it"); Sellers, 749 S.W.2d at 671 (similar); cf. People v. Cahill, 2 N.Y.3d 14, 777 N.Y.S.2d 332, 809 N.E.2d 561, 587-90 (2008) (relying on conjunctive statutory language to hold that burglary committed with intent to murder cannot elevate intentional murder to capital murder).


Context: In conclusion, there is no evidence that Stephens intentionally interfered with McGarr's relationship with Deskovic (as distinguished from intentionally violating Deskovic's rights), and anything less than conduct intentionally directed at the familjal relationship was not clearly established as unlawful within the Second Circuit at the time of Stephens' behavior in 1990. The Court therefore holds that Stephens is entitled to qualified immunity on McGarr's familial association claim.

noting, in context of abuse investigation, that there is a difference between evaluating the appropriateness of a case worker's actions, which "depends on the facts and events of a particular case," and "evaluating whether it was objectively reasonable for a case worker to believe" that his or her actions were lawful, which "depends on the clarity of existing law at the time of those events"

See Wilkinson, 182 F.3d at 107. n. 10 (noting, in context of abuse investigation, that there is a difference between evaluating the appropriateness of a case worker’s actions, which “depends on the facts and events of a particular case,” and “evaluating whether it was objectively reasonable for a case worker to believe” that his or her actions were lawful, which “depends on the clarity of existing law at the time of those events”); see also Reasonover, 447 F.3d at 585 (holding that defendants were entitled to qualified immunity for actions taken in 1983, as “any right to familial association was not sufficiently clear such that the defendants reasonably could have understood they were violating it,” because “[njeither the Supreme Court nor this court has clearly held wrongful prosecution and incarceration of a family member violates a right to familial association”).

holding that defendants were entitled to qualified immunity for actions taken in 1983, as "any right to familial association was not sufficiently clear such that the defendants reasonably could have understood they were violating it," because "[njeither the Supreme Court nor this court has clearly held wrongful prosecution and incarceration of a family member violates a right to familial association"


Context: Even if an individual chooses to file suit in the Court of Federal Claims without first applying to the BCNR for the correction of his military records, the court has the authority to remand the ease to the BCNR. When the purpose of the remand is to permit the BCNR to revisit a prior decision of the Secretary of the Navy, the decision of the BCNR becomes the final agency action subject to judicial review.

See 10 U.S.C. § 1552(a)(4) (providing that corrections of military records by correction boards are “final and conclusive on all officers of the United States”); Strickland v. United States, 423 F.3d 1335, 1339 (Fed.Cir.2005) (noting that “the correction board process provides for a single final agency action in every case” and that the decision of the Secretary of the Navy — made through the BCNR — “is plainly the final agency action”); see also RCFC 52.2(f)(1)(A) (requiring the parties to file notices “after the filing of the final decision or other action on remand” that indicate “whether the final decision or other action on remand affords a satisfactory basis for disposition of the case”); Sokol v. United States, 120 Fed.Cl. 144 (2015) (reviewing a correction board decision that had been issued pursuant to a remand order); Johnson v. United States, 97 Fed.Cl. 267, 268-69 (2011) (“The Court remanded the matter to the BCNR for further proceedings because of perceived errors in the board’s initial decision ____ The Court must examine whether the BCNR’s remand decision ‘affords a satisfactory basis for disposition of the case’ under Rule 52.2(f)(1)(A).”), ajfd, 467 Fed.Appx. 883 (Fed.Cir.2012).

noting that "the correction board process provides for a single final agency action in every case" and that the decision of the Secretary of the Navy -- made through the BCNR -- "is plainly the final agency action"


"The Court remanded the matter to the BCNR for further proceedings because of perceived errors in the board's initial decision ____ The Court must examine whether the BCNR's remand decision 'affords a satisfactory basis for disposition of the case' under Rule 52.2(f)(1)(A)."


"The Court remanded the matter to the BCNR for further proceedings because of perceived errors in the board's initial decision ____ The Court must examine whether the BCNR's remand decision 'affords a satisfactory basis for disposition of the case' under Rule 52.2(f


Context: As a preliminary matter, we are satisfied that the class definition Plaintiffs propose is sufficiently definite. Several courts, including this Court in Bowers, have certified similar classes in litigation regarding prison conditions.

certifying class consisting of "all persons who are now or will become incarcerated at [Passaic County Jail] during the pendency of this lawsuit"

See Bowers I, 2006 WL 2818501, at *8 (certifying a class consisting of “[a]ll persons who have been or will in the future be held post-preliminary arraignment in the custody of the Philadelphia Police Department, including its districts or the Police Administration Building, or anywhere in the Philadelphia Prison System, pending intake/admissions processing, at the Philadelphia Prison System, who have been or will in the future be subjected to the conditions of confinement as set forth in Plaintiffs’ Complaint”); Harris v. Pernsley, 654 F.Supp. 1042, 1045 (E.D.Pa.1987) (approving settlement that required certification of a class consisting of “all individuals who are, or who have been, inmates of the Philadelphia prison system since April 30, 1980 and all future inmates of the Philadelphia prison system during the time the court retains jurisdiction over the ease”); see also Colon v. Passaic County, No. 08-4439, 2009 WL 1560156, at *2 (D.N.J. May 27, 2009) (certifying class consisting of “all persons who are now or will become incarcerated at [Passaic County Jail] during the pendency of this lawsuit”); Vandehey v. Vallario, No. 06-1405, 2008 WL 697428, at *21 (D.Colo.

certifying a class consisting of "[a]ll persons who have been or will in the future be held post-preliminary arraignment in the custody of the Philadelphia Police Department, including its districts or the Police Administration Building, or anywhere in the Philadelphia Prison System, pending intake/admissions processing, at the Philadelphia Prison System, who have been or will in the future be subjected to the conditions of confinement as set forth in Plaintiffs' Complaint"


approving settlement that required certification of a class consisting of "all individuals who are, or who have been, inmates of the Philadelphia prison system since April 30, 1980 and all future inmates of the Philadelphia prison system during the time the court retains jurisdiction over the ease"


Context: Furthermore, even if admission of the evidence was error, it was harmless. Our de novo review shows us without this evidence the juvenile court had more than enough proof to support its decision.

evidence of parent's past actions which formed basis of prior CINA proceedings may be considered in new CINA proceeding as long as there is other clear and convincing evidence as basis of new CINA proceeding

See, e.g., In re T.C., 492 N.W.2d 425, 429-30 (Iowa 1992) (in termination proceeding, admission of evidence of father’s juvenile criminal record was error, but the error was harmless); see also In re N.M.W., 461 N.W.2d 478, 480-81 (Iowa App.1990) (evidence of parent’s past actions which formed basis of prior CINA proceedings may be considered in new CINA proceeding as long as there is other clear and convincing evidence as basis of new CINA proceeding).

in termination proceeding, admission of evidence of father's juvenile criminal record was error, but the error was harmless


Context: Evidence introduced at trial established that the appellants were members of the Aryan Nations organization, sometimes referred to as "Aryan Warriors." Because the term "Aryan Warrior" was relevant to background material, and referred to in testimony and other evidence presented to the jury, it was not improper for the prosecutor to mention it when questioning Nelson.

not misconduct for prosecutor to mention connection between defendant and Hell's Angels because evidence showed defendant stated he sold drugs to them

See United States v. Marques, 600 F.2d 742, 749 (9th Cir.1979) (not misconduct for prosecutor to mention connection between defendant and Hell’s Angels because evidence showed defendant stated he sold drugs to them), cert. denied, 444 U.S. 1019, 100 S.Ct. 674, 62 L.Ed.2d 649 (1980); United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986); cf. Dawson v. Delaware, — U.S. —, —, 112 S.Ct. 1093, 1099, 117 L.Ed.2d 309 (1992) (the first amendment prevents employing evidence of a defendant’s abstract beliefs at a sentencing hearing when those beliefs have no bearing on the issue being tried).

the first amendment prevents employing evidence of a defendant's abstract beliefs at a sentencing hearing when those beliefs have no bearing on the issue being tried


Context: . The district court seems more comfortable with sentencing Andrews based on Dante's levels of hell, but such a sentencing scheme has not been accepted as the law in this or any other federal circuit.

stating that the "Eighth Circle" would be appropriate for Andrews's co-conspirator

See Andrews, 301 F.Supp.2d at 609 (stating that the "Eighth Circle” would be appropriate for Andrews's co-conspirator); see also id. at 612 (stating that the "Fourth Circle” is appropriate for those who prey on the elderly); but cf. United States v. Winters, 117 F.3d 346, 348 (7th Cir.1997) (affirming denial of a downward departure despite district court's feeling that defendant belonged on a lower level of hell, citing Dante's Inferno).


Context: In Books, the Seventh Circuit held that "the placement of the American Eagle gripping the national colors at the top of the [Ten Commandments] monument hardly detracts from the message of endorsement; rather, it specifically links religion ... and civil government."

holding that display consisting of Bill of Rights, Preamble to Indiana Constitution and Ten Commandments would signal to the reasonable observer "that the state approved of such a link, and was sending a message of endorsement"

See Indiana Civil Liberties Union, 259 F.3d at 773 (holding that display consisting of Bill of Rights, Preamble to Indiana Constitution and Ten Commandments would signal to the reasonable observer “that the state approved of such a link, and was sending a message of endorsement”) (citing Books, 235 F.3d at 307).

agreeing with the Seventh Circuit's holding in Books that "the inclusion of an American eagle gripping the national colors at the top of the monument, serves to heighten the appearance of government endorsement of religion"

Books, 235 F.3d at 307. See also Adland, 307 F.3d at 486-87 (agreeing with the Seventh Circuit’s holding in Books that “the inclusion of an American eagle gripping the national colors at the top of the monument, serves to heighten the appearance of government endorsement of religion”). Here, the same can be said of Defendants’ transparent attempt to “secularize” the displays by surrounding the Ten Commandments with other patriotic documents and symbols, such as the Bill of Rights and the Preamble to the Kentucky Constitution.


Context: The record does not reflect whether Dr. Nadel agreed to testify for defendants. If Dr. Nadel had been unwilling to do so, defendants could not have compelled his testimony.

See Graham v. Gielchinsky, 126 N.J. 361, 369, 599 A.2d 149 (noting New Jersey in minority of jurisdictions not permitting compulsion of expert testimony); see also Genovese v. N.J. Transit Rail Operations, 234 N.J.Super. 375, 380, 560 A.2d 1272 (App.Div.) (holding opinion of expert may not ordinarily be compelled against expert’s wishes), certif. denied, 118 N.J. 195, 570 A.2d 960 (1989).

holding opinion of expert may not ordinarily be compelled against expert's wishes


Context: Ocean-going passenger vessels are engaged in maritime commerce, and where the conduct giving rise to the suit "occur[s] aboard a cruise ship in navigable waters, [the] cause of action contains the traditional nexus for maritime torts."

where child burned the soles of his feet on a hot ship's deck, maritime jurisdiction appropriate

Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 129, 132 (3d Cir.2002) (where child burned the soles of his feet on a hot ship’s deck, maritime jurisdiction appropriate); Friedman v. Cunard Line Ltd., 996 F.Supp. 303, 307 (S.D.N.Y.1998) (“maritime nexus ... is established by the role that ocean-going cruise ships play in maritime commerce”); see also Wallis v. Princess Cruises, Inc., 306 F.3d 827, 831-32, 840-41 (9th Cir.2002) (plaintiff sued for intentional infliction of emotional distress after her husband fell overboard and ship’s master told her that her husband had probably been “chopped up” by the propellers and his body would never be recovered); Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 72, 73 (3d Cir.1996) (slip and fall in cruise ship bathtub had nexus to traditional maritime activity).

plaintiff sued for intentional infliction of emotional distress after her husband fell overboard and ship's master told her that her husband had probably been "chopped up" by the propellers and his body would never be recovered


slip and fall in cruise ship bathtub had nexus to traditional maritime activity


"maritime nexus ... is established by the role that ocean-going cruise ships play in maritime commerce"


Context: Interpreting this constitutional provision, "[t]his court has held that two statutes, OCGA SSSS 40-13-30 and 17-4-23 (a), . . . authorize [county] police officers to arrest persons for traffic offenses in other jurisdictions. [Cits.]"

"An officer has authority to arrest a person accused of violating any law or ordinance governing the operation of a vehicle where the offense is committed in his presence regardless of territorial limitations."

State v. Heredia, 252 Ga. App. 89, 90 (1) (555 SE2d 91) (2001) (Cobb County police officer could pull over defendant in the city limits of Kennesaw for traffic violation committed in Kennesaw); see State v. Gehris, 242 Ga. App. 384, 386 (528 SE2d 300) (2000) (“An officer has authority to arrest a person accused of violating any law or ordinance governing the operation of a vehicle where the offense is committed in his presence regardless of territorial limitations.”) (punctuation and footnote omitted); see also Page v. State, 250 Ga. App. 795, 797 (553 SE2d 176) (2001); City of Winterville v. Strickland, 127 Ga. App. 716, 718-719 (2) (194 SE2d 623) (1972).


Context: P 80. The view that we adopt today is shared by numerous other state and federal courts, as the failure of a defendant to demonstrate how an abstract question regarding the availability of sexually explicit materials relates to the material for which prosecution is being sought.

See Commonwealth v. Trainor, 374 N.E.2d 1216 (Mass. 1978) (the absence of any connection between the willingness, the lack of willingness, or the indifference of a group to the sale of sexually explicit magazines of the showing of sexually explicit films and whether the particular sexual conduct involved in the case was depicted in a patently offensive manner made the survey evidence irrelevant); see also State v. Roland, 362 S.E.2d 800, 804 (N.C. App. 1987) (evidence of survey responses following questions dealing primarily with public tolerance of sexually explicit materials in general, rather than with acceptance of the materials under scrutiny, was properly disallowed as being irrelevant); State v. Williams, 598 N.E.2d 1250, 1257 (Ohio App. 1991) ("On the issue of relevance, the poll must be relevant to a determination of both community standards in general and the community's acceptance of viewing the particular film in question." (emphasis supplied)).


"On the issue of relevance, the poll must be relevant to a determination of both community standards in general and the community's acceptance of viewing the particular film in question." (emphasis supplied


Context: The basis for implied trusts -- indeed, their most evident difference from express trusts -- is the absence of any expressed words evincing the intent of the would-be settlor to create a trust for the would-be beneficiary. The existence of such words obviates a claim for a resulting trust (where the settlor designated one person as the beneficiary but, the claimant argues, meant for someone else to be the beneficiary) or a constructive trust (where the settlor designated one person but, the claimant argues, equity demands a different beneficiary).

holding "[t]he statute of frauds ... do[es] not apply to constructive trusts, which are implied by operation of law"

See Hertz, supra, 374 A.2d at 873 (holding that “the operative facts” of a constructive trust “can be proved by parol”); see also Starzec v. Kida, 183 Conn. 41, 438 A.2d 1157, 1160 n. 2 (1981) (holding “[t]he statute of frauds ... do[es] not apply to constructive trusts, which are implied by operation of law”); cf. Edwards v. Woods, 385 A.2d 780, 784 n. 5 (D.C.1978) (“It is true that the Statute of Frauds does not apply to resulting trusts.

holding that "the operative facts" of a constructive trust "can be proved by parol"


Context: Finally, if the defendant satisfies this burden of production, the plaintiff again has the burden of showing, through more than mere temporal proximity, that "more likely than not the employer's decision was motivated, at least in part, by an intent to retaliate against him."

noting that the burden shifts back to the plaintiff to demonstrate by competent evidence that "the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination."

El Sayed, 627 F.3d at 933 (“The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy appellant’s burden to bring forward some evidence of pretext.”); see Patterson v. County of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir.2004) (noting that the burden shifts back to the plaintiff to demonstrate by competent evidence that “the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.”).

"The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy appellant's burden to bring forward some evidence of pretext."


Context: First, the court in that case found that the evidence in dispute was "highly probative." Here, in contrast,' the government also offered testimony that Colon had admitted that he had a gun on the night in question. While the Face testimony does supply a motive for possession, motive is of little probative value when a flat-out confession is offered into evidence.

the probative value of a piece of evidence should be evaluated in comparison to the probative value of "evi-dentiary alternatives"

See Old Chief v. United States, 519 U.S. 172, 185, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (the probative value of a piece of evidence should be evaluated in comparison to the probative value of “evi-dentiary alternatives”); cf. United States v. Universal Rehabilitation Servs., 205 F.3d 657, 667 (3d Cir.2000) (en banc) (deciding against Rule 403 exclusion in part because alternative evidence was not equally probative with the evidence in dispute).


Context: Unlike the doctrine of implied contract, which provides for restitution in the absence of an enforceable agreement, promissory estoppel makes promises enforceable. Essentially, the doctrine of promissory estoppel, like consideration, serves as a contract-validating device.

Murray, supra, at 286. See Thatcher’s Drug Store of West Goshen, Inc. v. Consolidated Supermarkets, Inc., 535 Pa. 469, 476, 636 A.2d 156, 160 (1994)(noting that a promise unsupported by consideration is generally not enforceable, but may be enforceable under promissory estoppel); Shoemaker v. Commonwealth Bank, 700 A.2d 1003, 1006 (Pa.Super.1997)(same); see also Robert Mattery Lumber Corp. v. B. & F. Assoc., Inc., 294 Pa.Super. 503, 512, 440 A.2d 579, 583 (1982)(noting that promissory estop-pel has been characterized as a species of or a substitute for consideration); Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 74 n. 9, 384 A.2d 1228, 1233 n. 9 (1978)(same). A party seeking to establish a cause of action based on promissory estoppel must establish that: “(1) the promisor made a promise that he should have reasonably expected would induce action or forbearance on the part of the promisee; (2) the promisee actually took action or refrained from taking action in reliance on the promise; and (3) injustice can be avoided only by enforcing the promise.”


Context: . In summarizing these facts relating to costs and attorney's fees, the undersigned uses the affidavits and documents that were submitted with Plaintiffs motion for default judgment.

See S.E.C. v. Smyth, 420 F.3d 1225, 1232 n. 13 (11th Cir.2005) (noting that a hearing on damages is unnecessary where essential evidence is in the record); see also Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir.1989) (holding that court did not have to hold a hearing to determine attorney's fees where detailed affidavit was provided); cf. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir.1988) ("[T]he district court traditionally has had the power to make an [attorney's fee] award without the need of further pleadings or an evidentiary hearing....


Context: The weight of authority runs contrary to petitioner's claim that a rule of "harmful per se" should be applied to Miranda violations. Although the Supreme Court has never ruled definitively on this specific issue, petitioner has provided no compelling reason to treat testimony admitted despite the lack of an adequate waiver of Miranda rights differently from testimony obtained in contravention of other constitutional principles.

harmless error rule applied to prosecutor's comments at trial on defendant's post-arrest silence

See also United States v. Ramirez, 710 F.2d 535 (9th Cir.1983); United States v. Espinosa-Orlando, 710 F.2d 535 (9th Cir.1983); United States v. Moody, 649 F.2d 124 (2d Cir.1981); Collins v. Brierly, 492 F.2d 735, 743 (3d Cir.) (Adams, J., dissenting), cert. denied, 419 U.S. 877, 95 S.Ct. 140, 42 L.Ed.2d 116 (1974); cf. United States v. Cummiskey, 728 F.2d 200 (3d Cir.1984) (harmless error rule applied to prosecutor’s comments at trial on defendant’s post-arrest silence).

harmless error rule applied to prosecutor's comments and judge's instruction to jury concerning defendant's failure to testify

See, e.g., Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) (admission of statements elicited in violation of petitioner’s Sixth Amendment right to counsel; harmless error rule applied); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (harmless error rule applied to prosecutor’s comments and judge’s instruction to jury concerning defendant’s failure to testify). There is ample protection of the rights of the accused, and sufficient symmetry with the goals of the exclusionary rule, under the majority view which upholds a conviction obtained in the face of a Miranda violation only if the remaining evidence is “not only sufficient to support the verdict but so overwhelmingly so as to establish guilt of the accused beyond a reasonable doubt.”


Context: "If the trial court's decision was within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, then the trial court did not abuse its discretion." Where, however, a trial court's purported exercise of discretion flows from a mistaken legal premise, its decision does not fall within the range of legally correct choices and does not produce a permissible, legally correct outcome.

See State v. Mayfield, 302 Or 631, 645, 733 P2d 438 (1987) (explaining that, in some circumstances, a trial court can err if it “fails to exercise discretion, refuses to exercise discretion[,] or fails to make a record which reflects an exercise of discretion”); see also State v. Pemberton, 226 Or App 285, 289, 203 P3d 326 (2009) (holding that, under Mayfield, the exercise of discretion based on a mistaken premise of law can be a failure to properly exercise discretion).

explaining that, in some circumstances, a trial court can err if it "fails to exercise discretion, refuses to exercise discretion[,] or fails to make a record which reflects an exercise of discretion"


Context: By analogy, many courts have adopted intermediate scrutiny when evaluating restrictions on gun possession by particular people or in particular places. In Laurent, for example, the court considered a Second Amendment challenge to a ban on receipt of fire arms by a person who is under indictment for a crime punishable by imprisonment for more than one year.

But see United States v. Engstrum, 609 F. Supp. 2d 1227, 1231-32 (D. Utah 2009) (applying strict scrutiny to a statute banning persons convicted of misdemeanor domestic violence from possessing firearms); Nordyke v. King, 681 F.3d 1041,1044-45 (9th Cir. 2012) (declining to determine what type of heighted scrutiny applies to laws that substantially burden Second Amendment rights); United States v. Skoien, 614 F.3d 638, 641-42 (7th Cir. 2010) (rejecting rational basis as the appropriate standard but otherwise avoiding “the levels of scrutiny’ quagmire”).

Id.', see also Reese, 627 F.3d at 801, 802 (considering under intermediate scrutiny a law prohibiting possession of a firearm by a person subject to a domestic protection order); United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011) (reviewing under intermediate scrutiny a former federal regulation that prohibited carrying or possessing a loaded weapon in a motor vehicle within national park areas).


declining to determine what type of heighted scrutiny applies to laws that substantially burden Second Amendment rights


rejecting rational basis as the appropriate standard but otherwise avoiding "the levels of scrutiny' quagmire"


reviewing under intermediate scrutiny a former federal regulation that prohibited carrying or possessing a loaded weapon in a motor vehicle within national park areas


Context: Danoff contends that the IRS should be equitably estopped from denying his refund claim because a IRS agents told him during a telephone inquiry that he had four years to file his tax return. Section 6511, however, is not subject to equitable exceptions.

"[I]f a time limit is jurisdictional, it is not subject to the defenses of waiver, equitable tolling or equitable estoppel, although there may still be exceptions based on 'unique circumstances' "

See United States v. Brockamp, 519 U.S. 347, 354, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997), (“Congress did not intend courts to read other unmentioned, open-ended, ‘equitable’ exceptions into the statute that it wrote.”); see also Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir.2001) (“[I]f a time limit is jurisdictional, it is not subject to the defenses of waiver, equitable tolling or equitable estoppel, although there may still be exceptions based on ‘unique circumstances’ ”).

"Congress did not intend courts to read other unmentioned, open-ended, 'equitable' exceptions into the statute that it wrote."


Context: A federal district court "can only conduct a 'de novo review' of those [SOX whistleblower] claims that have been administratively exhausted."

Willis v. Vie Fin. Grp., No. 04-435, 2004 WL 1774575, *6 (E.D.Pa. Aug. 6, 2004) (holding that plaintiffs failure to raise a claim in an administrative complaint with OSHA precluded pursuing that claim in district court); see also Hanna v. WCI Cmts., 348 F.Supp.2d 1322, 1324, 1329 (S.D.Fl.2004) (under the “de novo review” provided by SOX, “district courts are able to consider the merits of a plaintiffs whistle-blower [administrative] complaint as if it had not been decided previously”) (internal quotation omitted); Murray v. TXU Corp., 279 F.Supp.2d 799, 802 (N.D.Tex.2003) (stating that district court lacks subject matter jurisdiction over Section 806 claim if plaintiff has failed to comply with administrative procedures).

under the "de novo review" provided by SOX, "district courts are able to consider the merits of a plaintiffs whistle-blower [administrative] complaint as if it had not been decided previously"


stating that district court lacks subject matter jurisdiction over Section 806 claim if plaintiff has failed to comply with administrative procedures


Context: Mr. Stevens moved to Maine on January 17, 2007. He does not, therefore, argue that SORNA cannot apply to him because he traveled before SOR-NA's effective date.

stating that "applying the Act to persons who crossed state lines before its enactment does not violate [the Ex Post Facto ] clause"

See United States v. May, 535 F.3d 912, 920 (8th Cir.2008) (requiring that a sex offender’s interstate travel occur after SORNA’s effective date); United States v. Rusted, 545 F.3d 1240, 1247 (10th Cir.2008) (same); but see United States v. Dixon, 551 F.3d 578, 583 (7th Cir.2008) (stating that “applying the Act to persons who crossed state lines before its enactment does not violate [the Ex Post Facto ] clause”). Instead, he argues that SORNA cannot apply to him because he traveled before February 28, 2007, the date the Attorney General promulgated a regulation (the Interim Rule) clarifying that SORNA applies to all sex offenders, including those who committed sex offenses prior to SORNA’s enactment.

requiring that a sex offender's interstate travel occur after SORNA's effective date


Context: The Former Wife raises several arguments regarding the propriety of the trial court's award of attorney's fees and costs. We dismiss for lack of jurisdiction her challenge to the award because, not only is the amended final judgment ambiguous regarding entitlement, the trial court reserved jurisdiction to determine the amount of fees to be awarded. Because the amount has not been determined, that portion of the amended final judgment is nonfinal and nonappealable.

holding that an order that determines only the right to attorney's fees without setting the amount is a nonap-pealable, nonfinal order

See McIlveen v. McIlveen, 644 So.2d 612, 612 (Fla. 2d DCA 1994) (holding that an order that determines only the right to attorney’s fees without setting the amount is a nonap-pealable, nonfinal order); see also Zuberer v. Zuberer, 28 So.3d 993, 993-94 (Fla. 2d DCA 2010) (affirming the amended final judgment of dissolution of marriage but dismissing as premature the trial court’s ruling only determining entitlement to fees because the issue was “not ripe for appeal” until the trial court determined the amount of the fees to be awarded).

affirming the amended final judgment of dissolution of marriage but dismissing as premature the trial court's ruling only determining entitlement to fees because the issue was "not ripe for appeal" until the trial court determined the amount of the fees to be awarded


Context: In effect, the certification is doubly removed from a right of confrontation. It constitutes a nontestimonial authentication of records of nontestimonial information.

record certifying the working condition of police breathalyzer machinery "rather than reflecting 'judgment and discretion' or 'expressions of opinion' of . . . [a] technician, merely signifies that the . . . procedures prescribed by regulation were satisfactorily performed"

See also Commonwealth v. Zein-inger, 459 Mass. 775, 784 (2011) (record certifying the working condition of police breathalyzer machinery “rather than reflecting ‘judgment and discretion’ or ‘expressions of opinion’ of . . . [a] technician, merely signifies that the . . . procedures prescribed by regulation were satisfactorily performed”).

"[gjiven [that hospital] records themselves do not fall within the constitutional guarantee provided by the Confrontation Clause, it would be odd to hold that the foundational evidence authenticating the [hospital] records do[es]"

See United States v. Ellis, 460 F.3d 920, 927 (7th Cir. 2006) (“[gjiven [that hospital] records themselves do not fall within the constitutional guarantee provided by the Confrontation Clause, it would be odd to hold that the foundational evidence authenticating the [hospital] records do[es]”).


Context: We are aware that decisions in other circuits have on occasion treated guilty pleas as admitting factual allegations in the indictment not essential to the government's proof of the offense.

Compare United States v. Tolson, 988 F.2d 1494, 1501 (7th Cir.1993) (holding that plea to multi-defendant conspiracy charge bars defendant from denying his involvement from the date of commencement of the conspiracy alleged in the indictment); United States v. Eaves, 849 F.2d 363, 365 (8th Cir.1988) (holding, without citation of authority, that guilty plea to indictment charging mail fraud scheme involving 135 victims precluded defendant from claiming at sentencing that fewer victims were involved) with United States v. Silvers, 84 F.3d 1317, 1320 (10th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997) (holding that guilty plea to indictment charging distribution of 1,000 marijuana plants did not establish amount of marijuana involved for sentencing purposes where defendant had specifically reserved the issue on entering his plea); see also United States v. Parker, 874 F.2d 174, 177-78 (3d Cir.1989) (holding that where indictment and plea agreement specified value of packages taken, entry of guilty plea conclusively established value for purposes of sentencing); cf. United States v. Hoyle, 33 F.3d 415, 419 (4th Cir.1994), cert. denied, 513 U.S. 1133, 115 S.Ct. 949, 130 L.Ed.2d 892 (1995) (finding no clear error where court relied at sentencing on loss amount in Bill of Information rather than inconsistent figures offered by defendant at hearing). The defendant is, of course, bound at sentencing by factual allegations that establish an element of the crime which he has admitted on pleading guilty.


finding no clear error where court relied at sentencing on loss amount in Bill of Information rather than inconsistent figures offered by defendant at hearing


See, e.g., United States v. Taffe, 36 F.3d 1047, 1049 (11th Cir.1994) (defendant who pled guilty to possession of AK-47 and Uzi in course of drug crime-in violation of 924(c)-could not later assert at sentencing that crime was possession of AK-47 alone); United States v. Johnson, 888 F.2d 1255, 1256 (8th Cir.1989) (defendant who pled guilty to indictment alleging conspiracy to distribute cocaine, LSD, and mushrooms could not later assert that he only knew about cocaine).


defendant who pled guilty to indictment alleging conspiracy to distribute cocaine, LSD, and mushrooms could not later assert that he only knew about cocaine


holding that guilty plea to indictment charging distribution of 1,000 marijuana plants did not establish amount of marijuana involved for sentencing purposes where defendant had specifically reserved the issue on entering his plea


Context: Because the carpenter was white, the entries were relevant to establish Griffin's culpable mental state and to rebut her assertion that she had acted accidentally or in reasonable self-defense. This theory of relevance does not depend on the inference that Griffin acted in conformity with her bad character generally.

See Masters, 58 P.3d at 998-1000 (writings and drawings evidencing a hatred of women were proper evidence of motive); People v. Cousins, 181 P.3d 365, 372-73 (Colo.App.2007) (other act evidence was admissible to show motive by demonstrating the defendant's antipathy toward women); People v. Nicolaus, 54 Cal.3d 551, 286 Cal.Rptr. 628, 817 P.2d 893, 906-07 (1991) (writings evidencing extreme dislike of religion were admissible to prove the defendant's mental state in murdering his religious ex-wife); State v. Crumb, 277 N.J.Super. 311, 649 A.2d 879, 882 (1994) (written evidence of racial animus was "powerful evidence of a motive which helps to explain an otherwise inexplicable act of random violence" and "tends to cast doubt on the credibility of defendant's self-serving statement that [the victim] initiated the confrontation"); see also State v. Waterhouse, 513 A.2d 862, 864-65 (Me.1986) (recording of the defendant's belief in Satanism was relevant to show motive, which was probative of identity and intent in a prosecution for murder).


other act evidence was admissible to show motive by demonstrating the defendant's antipathy toward women


writings evidencing extreme dislike of religion were admissible to prove the defendant's mental state in murdering his religious ex-wife


written evidence of racial animus was "powerful evidence of a motive which helps to explain an otherwise inexplicable act of random violence" and "tends to cast doubt on the credibility of defendant's self-serving statement that [the victim] initiated the confrontation"


Context: . Nor does Adler's allegation of political motivation create a judicial estoppel that bars him from asserting that his wife's law suit was the sole motivation for his discharge. In this Circuit, judicial estoppel applies only when a tribunal in a prior separate proceeding has relied on a party's inconsistent factual representations and rendered a favorable decision.

See Simon v. Safelite Glass Corp., 128 F.3d 68, 71-72 (2d Cir.1997) (applying judicial estop-pel to employment discrimination claim based on position taken in prior Social Security Administration disability adjudication); see also AXA Marine & Aviation Insurance (UK) Ltd. v. Seajet Industries Inc., 84 F.3d 622, 628 (2d Cir.1996) (applying judicial es-toppel analysis to position taken in New York State Supreme Court proceeding).


Context: Further, casinos by nature attract many customers even when their GTR is less than $500 million. As a result, a single casino is likely to generate significant local effects such as increased vehicular traffic, the presence of a large number of patrons, and the concomitant potential for substantial consumption of municipal resources such as fire and police services.

describing differences in us age of municipal services as a "significant" factor for tax classification purposes

See Shelly Funeral Home, 618 Pa. at 476, 57 A.3d at 1140 (observing that “businesses with high gross receipts tend to be larger and more likely than small ones to consume municipal resources”); cf. Leonard v. Thornburgh, 507 Pa. 317, 322, 489 A.2d 1349, 1352 (1985) (describing differences in us age of municipal services as a “significant” factor for tax classification purposes).

observing that "businesses with high gross receipts tend to be larger and more likely than small ones to consume municipal resources"


Context: This Court has consistently rejected determinations by Commerce that include the costs related to the purchase and resale of traded goods in the denominator of the SG&A ratio when Commerce could not show how expenses related to these goods affected production of the subject merchandise.

granting Commerce's request for a voluntary remand to remove expenses related to traded goods from the denominator for the calculation of the overhead ratio

See, e.g., Rhodia, 185 F. Supp. 2d at 1357 (granting Commerce’s request for a voluntary remand to remove expenses related to traded goods from the denominator for the calculation of the overhead ratio); see also Timken, 23 CIT at_, 59 F. Supp. 2d at 1379 (remanding to Commerce to exclude purchases of traded goods from SG&A, since it “failed to demonstrate how these already manufactured goods constitute a material cost incurred in manufacturing the subject merchandise.”); Luoyang Bearing Factory v. United States, 26 CIT_,_, 240 F. Supp. 2d 1268, 1305 (remanding to Commerce to “exclude ‘consumption of traded goods’ from Commerce’s overhead, SG & A and profit rate calculations and to recalculate the dumping margins accordingly. . . .”). In like manner, any amount of selling and administrative costs related to such goods should be excluded from the ratio’s numerator.

remanding to Commerce to exclude purchases of traded goods from SG&A, since it "failed to demonstrate how these already manufactured goods constitute a material cost incurred in manufacturing the subject merchandise."


remanding to Commerce to "exclude 'consumption of traded goods' from Commerce's overhead, SG & A and profit rate calculations and to recalculate the dumping margins accordingly. . . ."


Context: Vaughn's appeal complains that the post-conviction court applied the wrong standard because Harbor held that there is no requirement that the new factor "frustrate" the sentence in order to justify modification of that sentence. The post-sentencing court may still, however, consider whether the new factor frustrates the original sentencing scheme.

See also State v. Ninham, 2011 WI 33, ¶ 89, 333 Wis. 2d 335, 384, 797 N.W.2d 451, 476 ("In determining whether to exercise its discretion to modify a sentence on the basis of a new factor, the circuit court may, but is not required to, consider whether the new factor frustrates the purpose of the original sentence.").

See id., 2011 WI 28, ¶ 50, 333 Wis. 2d at 78, 797 N.W2d at 840 ("A circuit court might conclude that its entire approach to sentencing would have been different had it been aware of a fact that is 'highly relevant to the imposition of sentence.' Even so, the court may not be able to conclude that the new fact, which would have changed its entire approach to sentencing, necessarily frustrates the purpose of the original sentence it imposed.") (quoted source omitted).


Context: Discussion. An attorney has a duty to exert his best efforts to ensure that his client's decisions are based on correct information as to the applicable law. Counsel's erroneous advice to Garcia that community supervision was still available if he chose to go to the judge for sentencing fell below an objective standard of reasonably professional judgment and foreclosed him from receiving community supervision.

counsel's erroneous advice to defendant to elect court to assess punishment was based on counsel's mistaken belief that defendant was eligible for shock probation and deprived defendant of opportunity for jury to assess probation, and thus fell below standard of reasonable representation

See Gallegos, 756 S.W.2d at 48 (counsel who failed to inform defendant his jury waiver at punishment phase precluded him from receiving probation was ineffective, where the error was not an exercise of reasonable professional judgment and prejudiced defendant); see also Ex parte Canedo, 818 S.W.2d 814, 815 (Tex.Crim.App.1991) (counsel’s erroneous advice to defendant to elect court to assess punishment was based on counsel’s mistaken belief that defendant was eligible for shock probation and deprived defendant of opportunity for jury to assess probation, and thus fell below standard of reasonable representation); Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Crim.App.1991) (defendant’s election to plead guilty, based on counsel’s erroneous advice that he was eligible for court-ordered probation, was not done voluntarily and knowingly); Medeiros v. State, 733 S.W.2d 605, 607 (Tex.App.-San Antonio 1987, no pet.) (attorney’s admitted lack of knowledge of probation laws cannot supply basis for informed decision concerning assessment of punishment).


defendant's election to plead guilty, based on counsel's erroneous advice that he was eligible for court-ordered probation, was not done voluntarily and knowingly