Input: statement as true at the time she gave it; that she was still consumed with the emotions of the event when talking with police; and that other evidence corroborated her statement, we find that there was sufficient evidence to lay a foundation for admission of the statement under section 90.803(5), even though the declarant herself never confirmed the accuracy of the statement at trial. Admission of Evidence Regarding Victim’s Identification of Polite from a Photo Line-Up Polite next contends that the trial court abused its discretion by admitting evidence of Ms. Levine’s out-of-court identification of him from a photo line-up on grounds that the State failed to inquire into this issue during its direct examination of Ms. Levine. E.g., Deans v. State, 988 So.2d 1271 (Fla. 5th DCA 2008) (<HOLDING>); Neilson v. State, 713 So.2d 1110 (Fla. 2d DCA Holdings: 0: holding defendant waived right to challenge incourt identification when he admitted guilt at punishment phase of trial 1: holding that appellant was not lawfully detained for investigation of public intoxication when he gave false identification therefore trial court erred in denying his motion to suppress his false identification statements 2: holding that trial court erred when it admitted outofcourt identification of defendant when the witness who made the identification was never asked about defendants identity at trial 3: holding that testimony regarding outofcourt identification was inadmissible where the state failed to ask the witnesses about the identification during its direct examination 4: holding that prior identification is not hearsay when the declarant is available at trial for crossexamination and that it makes no difference whether the witness admits or denies or fails to recall making the prior identification


Input: agreed diming an interview that an “amendment regarding the level of copper” would probably overcome the obviousness rejection. In the amendment that followed, the applicants stated that the phrase, copper ions in an amount sufficient to degrade, “makes explicit that which was implicit in the claim before, namely, that the composition of IgGl im-munoglobulin also contains copper ions.” The applicants also stated that the claimed compositions comprise sufficient amounts of copper ion chelator to bind to the “trace amounts of copper” and thus prevent degradation. After reviewing the specification and the prosecution history, the court finds that the phrase, “copper ions in an amount sufficient to degrade,” should be construed according to its plain meaning. See Vitronics, 90 F.3d at 1582 (<HOLDING>). The inventors did not set forth an Holdings: 0: holding that statutory words must be given their ordinary contemporary meaning 1: holding that to act as its own lexicographer a patentee must clearly set forth a definition of the disputed claim term other than its plain and ordinary meaning 2: holding that words in the claims are generally given their ordinary and customary meaning unless a patentee clearly sets forth a different definition in the specification or file history 3: recognizing we must give insurance policy language its ordinary and generally accepted meaning unless the policy shows that the words used are intended to impart a technical or different meaning 4: holding that the clear and unambiguous words of an insurance contract should be given their plain and ordinary meaning


Input: Court for the Middle District of Florida to consider a second or successive petition for writ of habeas corpus raising a claim of intellectual disability under Atkins v. Virginia,” as well as a stay of execution pending the outcome of the second or successive habe-as proceedings in the District Court. Three days after Mr. Henry filed his emergency application, our Court denied it “for two independent reasons: first, the rule enunciated in Hall v. Florida ha[d] not been made retroactive by the United States Supreme Court; moreover, even if it had been, [Mr. Henry] ha[d] not shown a reasonable likelihood that he would benefit from the rule in Hall.” 757 F.3d at 1153. This Court also denied Mr. Henry a stay because he had not established any likelihood of success on t 0 L.Ed.2d 632 (2001) (<HOLDING>); Bousley v. United States, 523 U.S. 614, 118 Holdings: 0: holding that the rule announced in cage v louisiana 498 us 39 111 sct 328 112 led2d 339 1990 per curiam doesnt apply retroactively on collateral review 1: holding that the rule announced in ring v arizona 536 us 584 122 sct 2428 153 led2d 556 2002 doesnt apply retroactively on collateral review 2: holding that the rule announced in mills v maryland 486 us 367 108 sct 1860 100 led2d 384 1988 doesnt apply retroactively on collateral review 3: holding that the rule announced in espinosa v florida 505 us 1079 112 sct 2926 120 led2d 854 1992 per curiam doesnt apply retroactively on collateral review 4: holding that the rule announced in simmons v south carolina 512 us 154 114 sct 2187 129 led2d 133 1994 doesnt apply retroactively on collateral review


Input: to ensure its enoxaparin is not adulterated. 21 U.S.C. § 351(b). This testing, which generates information for submission pursuant to the Food, Drug, and Cosmetic Act, therefore falls squarely within the scope of the safe harbor. Finally, the dissent suggests that we must reject any disequilibrium between sections 201 and 202 of the Hatch-Wax-man Act, that is, the safe harbor should not be available unless a patent term extension is also available. Dissenting Op. at 1370-71. This is not correct. The Supreme Court in Eli Lilly noted that equilibrium was not always achieved. See Eli Lilly, 496 U.S. at 671-72, 110 S.Ct. 2683. We too have rejected this strict interpretation of the safe harbor, explaining that “statutory symmetry is preferable but not required.” Abtox, 122 F.3d at 1029 (<HOLDING>). III. Under the correct interpretation of 35 Holdings: 0: holding that contracts are not binding before court approval because the debtorinpossession operates as a fiduciary any actions taken by the debtor are to be in the best interests of the creditor body as a whole for that reason  the debtors actions are subject to  review by the creditors of the estate and the bankruptcy court 1: holding that sellers of covered calls are not atypical class representatives 2: holding that uses which are not ultimately included in a submission to the fda are nonetheless exempted by the safe harbor 3: holding that sanctions under rule 11 are unavailable unless the motion for sanctions is served on the opposing party for the full twentyone day safe harbor period before it is filed with or presented to the court 4: holding that class ii medical devices which are not subject to a rigorous premarket approval process and thus cannot receive patent term extensions are nonetheless covered by the safe harbor


Input: v. American Oil Co., 257 Ind. 458, 276 N.E.2d 144, 148 (1971) (“We do not mean to say or infer that parties may not make contracts ... providing for indemnification, but it must be done knowingly and willingly as in insurance contracts made for that very purpose.”). To ensure that a party is not saddled with an unintended burden to insure or indemnify, such provisions are “strictly construed ... and will not be held to provide indemnity unless so expressed in clear and unequivocal terms.” Moore Heating, 583 N.E.2d at 145 (“Courts disfavor such indemnification clauses because to obligate one party to pay for the negligence of the other party is a harsh burden which a party would not lightly accept.”); see also Exide Corp. v. Millwright Riggers, Inc., 727 N.E.2d 473, 480 (Ind.App.2000) (<HOLDING>); Ogilvie v. Steele by Steele, 452 N.E.2d 167, Holdings: 0: holding that an indemnification clause that covers all claims demands rights and causes of action of any kind whether arising from avants own acts or those of fitness pointe encompassed indemnification for negligent implementation of a fitness program 1: holding that because the indemnification clause contained no clear statement that would give the contractors notice of the harsh burden that complete indemnification imposes indemnification was inappropriate 2: holding that where the policy includes indemnification coverage to the corporation proceeds are not property of the estate where there is no proof of payments by corporation of payments 3: holding that although a letter agreementwas clear and unambiguous in requiring indemnification for undisclosed liabilities the relevant paragraph was uncertain and indefinite in that it did not specify what warranties representations and indemnification were appropriate  4: holding directors and officers liability policy was property of the estate because the estate was worth more with indemnification coverage than without the coverage


Input: applies, with caution, a balancing test in which consideration is to be given in part to “the magnitude of the burden of guarding against [injury] and the consequences of placing that burden upon the defendant” (internal quotation marks and citation omitted)). {29} Further, under the circumstances in this case, we determine that reasonable minds could not differ on the issue of termination by Haar of the physician-patient relationship. The once-existing special relationship and ability to control Haar’s treatment disintegrated as a result of Haar’s failure after March 8, 2000, to seek Defendant’s assistance in any regard and Haar’s having chosen other mental health providers to handle his treatment and medication. See Millbaugh v. Gilmore, 30 Ohio St.2d 319, 285 N.E.2d 19, 21 (1972) (<HOLDING>); cf. Paradies v. Benedictine Hosp., 77 A.D.2d Holdings: 0: holding that the special relationship exception does not apply to the relationship between a student and a school 1: recognizing that a caregiver and patient relationship may be confidential 2: holding that a psychiatrist had no duty to detain a patient who killed himself and injured his wife because the patient was outside of the scope of the facilitys range of observation and control even when the psychiatrist agreed to treat the patient the patient had suicidal tendencies and the psychologist took the patient into custody but then later permitted him to leave 3: holding that the physicianpatient relationship terminated when the patient missed a scheduled appointment and did not see the physician again and that the relationship did not continue despite the fact the patient later secured a refill of a prescription that was prescribed during the relationship 4: holding that no physicianpatient relationship between doctor who gave informal opinion over telephone at request of treating physician and minor patient whose case was discussed and thus doctor did not owe duty of care to patient


Input: the district court’s determination that Boswell consented to the search. If Boswell had authority over the case, whether joint or sole, then he had authority to consent to its search. We conclude that, bas that authority to consent to a search of property does not necessarily translate into authority to search specific containers. See Welch, 4 F.3d at 764 (“The shared control of ‘host’ property does not serve to forfeit the expectation of privacy in containers within that property.”). However, in the cases in which we have held that there was not actual or apparent authority for a third party to consent to a search we have found that there was some fact that made it unreasonable for the officer to believe that the third party had authority over the container. See, e.g., id. at 764-65 (<HOLDING>). Here, Boswell’s statement that he did not Holdings: 0: holding that it was unreasonable to believe that womans boyfriend had authority to consent to the search of her purse even though he had authority to consent to the search of the car in which it was kept 1: holding that it was objectively reasonable for the police to conclude that the general consent to search the respondents car included consent to search a bag within that car 2: holding that search of defendants purse which he carried was authorized by a warrant to search his person 3: holding that the defendants consent to allow the officer to search her purse by way of holding it open for the officer was for consent to a limited view of the purses interior not to surrender possession  for an unrestricted search and thus the officer exceeded the scope of the defendants consent 4: holding that the question of whether police had a reasonable basis for finding that a third party had authority to consent to search is a question of law


Input: immediate appeals of interlocutory orders if a statute explicitly provides such jurisdiction. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007). We strictly construe a statute authorizing an interlocutory appeal because it is an exception to the general rule that only final judgments are appealable. Id. at 841. To appeal pursuant to section 51.014(a)(5), the appellant must be “an individual who is an officer or employee of the state or a political subdivision of the state.” See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5). Rogers does not argue that he is a state employee or that he otherwise contracted with a governmental entity to perform governmental duties. See id.; see also Knowles v. City of Granbury, 953 S.W.2d 19, 24 (Tex.App.-Fort Worth 1997, pet. denied) (<HOLDING>). We therefore limit our inquiry to whether Holdings: 0: holding that private party can assert official immunity if it contracted with a public official to perform governmental duties 1: holding that where a public official takes discretionary action that the official knows will directly benefit a financial interest that the official has concealed in violation of a state criminal law that official has deprived the public of his honest services under  1346 2: holding that if official has violated clearly established law he is entitled to qualified immunity only if reasonable official could have believed conduct was lawful 3: holding police officer is a public official 4: holding that a state official can be held individually hable under  1983 for acts taken within the scope of his or her official duties


Input: prohibition on cruel and unusual punishment. Id. at 2464. Importantly, Miller applies only to juvenile defendants, who were not at issue in Harmelin. Id. at 2470 (“Harmelin had nothing to do with children and did not purport to apply its holding to the sentencing of juvenile offenders.”). We therefore conclude that Miller did not alter Hcmne-lin as Lopez suggests; Lopez was not a juvenile at the time of the charged offense, so Harmelin — not Miller — is controlling. Accordingly we conclude that the Eighth Amendment is not violated by the imposition of a mandatory sentence of life, with the possibility of parole. See Harmelin, 501 U.S. at 994-95, 111 S.Ct. 2680. We overrule Lopez’s third and fourth issues. C. Due process guarantees In his fifth'a Ct. 1586, 1591, 29 L.Ed.2d 90 (1971) (<HOLDING>), to argue that it is appropriate to deviate Holdings: 0: recognizing validity of retroactive license that memorialized grant of oral license 1: holding motorist entitled to hearing before taking his license under statute that required loss of license if uninsured driver involved in an accident 2: holding that possession of a drivers license is irrelevant to the offense of failing to present a license which is completed by failing to present the license when requested to do so by an officer 3: holding governments repudiation of license gave patentee right to terminate license 4: holding that a hit and run or unknown driver is deemed to be uninsured for purposes of the uninsured motorist statute


Input: DPUC’s rules will deprive Berkshire of the claimed rights that it seeks to protect. While Berkshire remained an applicant, the DPUC’s rules realistically threatened to harm Berkshire’s rights or interests as an operator; now that Berkshire is no longer an applicant, such a threat no longer exists. Further, in spite of our specific inquiry, Berkshire has failed to show how its dissatisfaction with the requirements significantly affected its own application, or the outcome. Berkshire accepts this reasoning in respect to its “taking without compensation” claim. But, it says that the “controversy” in respect to its First Amendment claims continues, and that the case is therefore" not moot. See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911) (<HOLDING>). We disagree. First, Berkshire points out that Holdings: 0: holding that issues as to whether declaratory relief should be granted had become moot and would be dismissed for lack of jurisdiction but that under hallman the entire appeal was not moot because there still was a live controversy as to whether appellee was entitled to recover attorneys fees under the declaratory judgments act and therefore issues regarding attorneys fees were not moot and would be decided 1: holding that a trial court may deny a confirmation motion when satisfaction has rendered the controversy moot 2: holding a case becomes moot when a ruling will have no practical effect upon the existing controversy 3: holding appeal moot on this basis 4: holding continuing controversy not moot


Input: the ‘purchase’ method of accounting, under which the newly created thrift could designate the excess of the purchase price over the fair value of all acquired assets as an intangible asset called ‘supervisory goodwill,’ and claim it as an asset for purposes of computing regulatory capital.”); Fifth Third Bank, 402 F.3d at 1224 (same). The panel majority’s further holding that 12 CFR § 563.13, cited supra in Winstar, does not concern the purchase method of account 17 F.3d 1363, 1370 (Fed.Cir.2003) (“These arrangements concerning goodwill [including a Financing Agreement and a Bank Board Resolution] and the infusion of capital from various sources enabled Taiman in 1986 to meet the existing capital requirements.”); California Fed. Bank v. United States, 245 F.3d 1342, 1347 (Fed.Cir.2001) (<HOLDING>). The panel majority’s criticism that “no Holdings: 0: holding that an arbitration agreement is separable from the underlying agreement 1: holding that a party seeking to compel arbitration must establish the existence of an arbitration agreement and show that the claims raised fall within the scope of that agreement 2: holding that where one party had received a written agreement and conformed his conduct to that agreement for an extended period of time but failed to sign the agreement he was equitably estopped from denying the validity of the agreement 3: holding that objecting to guidelines calculations as specifically reserved in the plea agreement is not a breach of the plea agreement even if the objection is overruled and thus government is not released from obligation under the agreement to move for acceptance of responsibility 4: holding that even without an assistance agreement or a supervisory action agreement the factual records of the case including various correspondence memoranda and bank board resolutions show intent to contract with the government for specified treatment of goodwill


Input: evidence of damages. Thus we remand the case to the trial court for additional testimony limited to the damages, if any, caused by the changes in the project as envisioned by the August 18 1993 plan and as referenced in the deed from Brenco to SCDOT, and the final project as built. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. BEATTY and SHORT, JJ., concur. 1 . Breneo contends the trial court erred in finding the parol evidence rule barred its representative’s testimony regarding their belief sur rounding the access of the property to Highway 501. We agree, but even considering the testimony, we find Brenco failed to prove the deed should be rescinded due to unilateral or mutual mistake. See S. Realty & Constr. Co. v. Bryan, 290 S.C. 302, 309, 350 S.E.2d 194, 198 (Ct.App.1986) (<HOLDING>). 2 . In addition to increasing the grade of Holdings: 0: holding that parol evidence is admissible to resolve a contractual term that is ambiguous 1: holding parol evidence is admissible to show mistake 2: holding that parol evidence is admissible to establish a condition precedent to the existence of a contract 3: holding that parol evidence is admissible to show that an individual who signed a contract but is not named in the body is a party to the contract 4: holding that parol evidence is admissible to determine intent of parties


Input: S.Ct. at 1628, 100 L.Ed.2d at 36. In Sampson, the defendant challenged the search of trash that she had placed inside her yard, but also within reach from a municipal sidewalk. 362 Md. at 441, 765 A.2d at 630. We noted that the proper focus after Greenwood was whether the defendant’s subjective expectation of privacy in her trash was objectively reasonable. Id. at 444-45, 765 A.2d at 632-33. This Court recently had the occasion to apply the objecti (6th Cir.2005) (finding that Hunyady had no standing to challenge search of home he illegally entered because his presence was “wrongful.”); United States v. McRae, 156 F.3d 708, 711 (6th Cir.1998) (determining that squatter had no standing to challenge search of abandoned home): United States v. Dodds, 946 F.2d 726, 728-729 (10th Cir.1991) (<HOLDING>); United States v. Ruckman, 806 F.2d 1471, 1472 Holdings: 0: holding that squatter had no standing to challenge search of abandoned apartment because hardly more than a fugitive presence would not be one that could be accepted by society 1: holding that squatter in home did not have standing to challenge search of house where he was staying 2: holding that squatter had no standing to challenge search of abandoned apartment which he had occupied solely for the business of packing for distribution for narcotics 3: holding that squatter had no standing to challenge search of abandoned house where he was staying 4: holding that squatter had no reasonable expectation of privacy and therefore no fourth amendment standing to challenge search of abandoned structure


Input: The common-law duty to inspect, repair, and warn is not absolute. This court has adopted Restatement (See-ond) of Torts § 343A, subsection (1), which states: “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Restatement (Second) of Torts § 343A(1) (1965); Baber v. Dill, 531 N.W.2d 493, 495-96 (Minn.1995) (citing Peterson v. W.T. Rawleigh Co., 274 Minn. 495, 496-97, 144 N.W.2d 555, 557-58 (1966) (expressly approving Restatement (Second) of Torts § 343A)). Generally, whether a condition presents a known or obvious danger is a question of fact. See, e.g., Louis, 636 N.W.2d at 321-22 (<HOLDING>). Whether the possessor could anticipate the Holdings: 0: holding that whether a plaintiffs reliance on defendants misrepresentations was justified is a question of fact precluding summary judgment 1: holding that summary judgment was improper because there was a question of fact pertaining to whether a motorists gratuitous signal to pass was negligent 2: holding that summary judgment was not appropriate because whether the danger posed by a swimming pool was known or obvious was a fact question 3: holding that the question of whether the defendants recording device was an intercepting device was a question of law appropriate for summary judgment 4: holding that summary judgment against plaintiff was premature because determination of whether plaintiff was a trespasser invitee or licensee was question of fact


Input: rights as a tax hen. See 18 U.S.C. § 3613(c); Hosking, 567 F.3d at 335. And whether or not Lestina is in a position to advocate for her husband (who did not try to appear in the district court as an interested party, see United States v. Kollintzas, 501 F.3d 796, 800 (7th Cir.2007)), her argument that the restitution schedule is unfair to her husband rings hollow. Spouses have a general obligation to support each other, see 305 ILCS 5/10-2; Poindexter v. State ex rel. Dep’t of Human Servs., 229 Ill.2d 194, 321 Ill.Dec. 688, 890 N.E.2d 410, 415 (2008), but there is no requirement that each spouse contribute equally — or at all — to the support of the other so long as each is supported, see In re Estate of McGloon, 191 Ill.App.3d 968, 139 Ill.Dec. 53, 548 N.E.2d 438, 440 (1989) (<HOLDING>). As Lestina’s own reporting reveals, this Holdings: 0: holding that a reservation clause gave a life estate to a spouse pursuant to a deed reserving use of the property to both husband and wife for life even though the husband had no interest in the property 1: holding that a husband cannot be required to pay a support award that exceeds his financial ability 2: holding a wife liable for necessary medical expenses incurred by her husband under the doctrine even though the wife did not sign as a guarantor and did not request that her husband be admitted nor anticipate that her husband would be admitted 3: holding that both husband and wife are obligated to support each other based on relative ability to pay 4: recognizing that husband and wife count as separate victims where each sustains part of the actual loss


Input: Ed., Charleston Reorganized School Dist. No. 1, 599 S.W.2d 254, 255-56 (Mo.App.1980). There is no requirement, however, that any board member actually sign the written decision. See Willis v. School Dist. of Kansas City, 606 S.W.2d 189, 196 (Mo.App.1980) (applying this rule to the termination of a tenured teacher rendered pursuant to §§ 168.118-.120); Brown v. Weir, 675 S.W.2d 135, 138-40 (Mo.App.1984) (applying the same rule to the termination of a teacher pursuant to § 168.221). The relevant question is simply whether the document containing the findings of fact, conclusions of law and decision signed by Board President Riffle represents the written decision of the Board. See, e.g., Moesch v. Moniteau County R-1 School District Board of Education, 257 S.W.3d 661, 662-64 (Mo.App.2008) (<HOLDING>); Willis, 606 S.W.2d at 196 (holding that the Holdings: 0: holding that petitioners status as school board members does not permit them to step into the shoes of the school board and invoke its right to appeal 1: holding that an associations president who was not a party before the board of appeals was not entitled to appeal the boards decision granting a zoning application that his association had opposed in the board proceedings 2: holding that a reviewing court is not to substitute its decision for that of the board 3: holding that the district court was authorized to remand the proceedings to the board where the board failed to make required findings 4: holding that the findings of fact conclusions of law and decision signed by the school board president constituted the decision of the board


Input: in the exercise of the Court’s discretion. Indeed, with respect to discretionary issues, the only one that the Court finds it prudent to consider is whether the remaining heirs of von Mendelssohn-Bartholdy, of whom there are apparently around forty, see transcript 3/5/08, should be joined to this lawsuit under Federal Rule of Civil Procedure 19(a). Although neither party has moved for joinder, courts frequently do— and indeed should — consider the issue sua sponte because a primary purpose of Rule 19 is to protect the rights of an absentee party. See MasterCard Int’l, Inc. v. Visa Int’l Serv. Ass’n, 471 F.3d 377, 382-383 (2d Cir.2006). As the Museums repeatedly have emphasized, however, they seek in this action declarations of their property rights in the paintings only v (2d Cir.2003) (<HOLDING>); cf. Oneida Indian Nation v. New York, 732 Holdings: 0: holding a plaintiff failed to show an actual injury to challenge an epa rule when the plaintiff alleged he would not have purchased a piece of property or would have paid  less because the plaintiffs allegations showed only that the property was worth less to him not that the property was in fact worth less 1: holding that the appropriate remedy for a public trial violation was a new suppression hearing not a new trial because the remedy should be appropriate to the violation 2: holding that if defendant could establish ineffective assistance of counsel in failure to file petition for review in his direct appeal then appropriate remedy would be to allow filing of petition for review out of time 3: holding that current titleholder would only have to be joined if the appropriate remedy for the plaintiff would be to reconvey his property 4: holding that in light of the defendants failure to engage in the interactive process liability would be appropriate if  reasonable accommodation would otherwise have been possible


Input: (per curiam). With that in mind, we proceed to analyze Berry’s submission. Berry must demonstrate that his attorneys charged a reasonable rate and that the time they expended on his representation was reasonable. See In re North (Gardner Fee Application), 30 F.3d 143, 146 (D.C.Cir.1994) (per curiam). Based on the affidavits and other exhibits submitted by Berry, we conclude that the hourly rates charged by his attorneys ($110 — $400) and their paralegals ($75-$100) comport with prevailing community standards and are within the realm of reasonableness. Id. We also conclude that he has, for the most part, provided adequate descriptions and documentation of the work performed. See National Ass’n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 (D.C.Cir.1982) (per curiam) (<HOLDING>). There are, however, various items that must Holdings: 0: holding that the officer played no role in the prosecution because the police report provided to the prosecutor did not contain false information 1: holding that a fee application must contain sufficiently detailed information about the hours logged and the work done 2: holding all contracts contain an implied term that the the person for whom the work is contracted to be done will not obstruct hinder or delay the contractor 3: holding that the unambiguous terms of the your work exclusion do not eliminate coverage for harm done to a subcontractors work 4: holding that the plaintiff sufficiently pleaded a violation of the fcra based on extraneous information where it was alleged that the document included broad language regarding disclosure of the information the accuracy of the information the consequences of providing a false statement and the effect of a photocopy


Input: See 29 U.S.C. § 203(s)(l)(A)(ii). Defendants have attached both an affidavit and the tax returns for the prior three years to their Motion to Dismiss, and these documents reflect that Pegaso’s gross sale volume falls short of $500,000. In light of the evidence presented by Defendants, this Court finds Defendants have established that the restaurant does not meet the FLSA “enterprise” standard. Plaintiff claims that it is premature for this Court to make a dispositive finding with respect to the gross volume of sales issue and asks that this Court provide her an opportunity to conduct further discovery. As discovery on this matter would not lead to any genuine issues of fact, this Court cannot accede to Plaintiffs request. Cf. Strag v. Board of Trustees, 55 F.3d 943, 954 (4th Cir.1995) (<HOLDING>). Even if an employer does not meet the Holdings: 0: holding that under rule 56f nonmoving party seeking additional discovery must demonstrate precisely how additional discovery will lead to a genuine issue of material fact 1: holding that there was a genuine issue of material fact precluding summary judgment 2: holding that a court may deny a rule 56f motion where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment 3: holding that rule 56f may not defeat summary judgment where the result of a continuance to obtain further information would be wholly speculative 4: holding that the court was precluded from considering whether the district court had abused its discretion in ruling on defendants summary judgment motion before allowing plaintiff to conduct requested discovery where the plaintiff had not filed an affidavit pursuant to rule 56f and stating that  when a party does not avail himself of relief under rule 56f it is generally not an abuse of discretion for the district court to rule on the motion for summary judgment  citation omitted


Input: to the lawful arrest would have minimal deterrent effect on illegal police behavior. Conclusion In this case, where a stop was undertaken on less than reasonable suspicion, but with the purpose of executing a lawful outstanding arrest warrant, the trial court properly denied Quinn’s motion to suppress because the intervening lawful arrest was sufficient to remove the taint of any police illegality. We affirm. Affirmed. SHARPNACK, J., concurs. RILEY, J., concurs in result with opinion. 1 . We note that neither case is binding on our decision today. See Palmer v. State, 744 N.E.2d 525, 530 (Ind.Ct.App.2001) (declining to follow another panel of this court’s decision in a factually similar case); rev'd on other grounds; McBride v. State, 440 N.E.2d 1135, 1137 n. 4 (Ind.Ct.App.1982) (<HOLDING>). RILEY, Judge, concurs in result. I concur in Holdings: 0: recognizing federal authority on standing to be persuasive 1: recognizing that unpublished decisions issued after january 1 1996 are not controlling precedent but may be considered persuasive authority 2: holding the florida appellate courts are not bound by federal precedent which is persuasive not binding authority 3: holding that a condition was precedent to performance because the contract language did not explicitly state that it was precedent to formation 4: recognizing that although federal precedent was not binding it was persuasive authority


Input: of majority). While there may be an extreme case where the delay was so long and so prejudicial that it would violate due process to allow the case to proceed, this case is not close to that line. Delay also works to the disadvantage of a plaintiff, who bears the burden of proof, and loss or destruction of potential evidence, as the defendants allege occurred here, may be addressed through spoliation arguments or instructions where appropriate. See OCGA § 24-4-22; Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 30-31 (174 SE 708) (1934). Where the General Assembly wishes to put a firm deadline on filing lawsuits, it knows how to enact a statute of repose instead of a statute of limitation. See, e.g., OCGA § 9-3-71 (b), (c); Wright v. Robinson, 262 Ga. 844, 845 (426 SE2d 870) (1993) (<HOLDING>). 3. The trial court also found that Boyd was Holdings: 0: holding that statute of repose was not subject to toiling provision applicable to statute of limitations because among other reasons it would ignore fundamental distinctions between ordinary statutes of limitations and statutes of repose 1: holding that when the legislature enacts a statute it is presumed that the legislature is aware of existing statutes 2: holding that statute was one of repose because it embodies the most distinctive characteristic of a statute of repose the barring of the right to bring an action rather than the remedy prescribed 3: holding that the legislature never intended for the dismissal and renewal statutes to overcome the statute of repose 4: holding that provision has the characteristics of a statute of repose


Input: in admitting that he was a “responsible person” within the meaning of Section 6672 and that Debtor, after receiving the IRS’s demand in May 1998 for full payment of the past due taxes, cooperated fully and openly with the IRS revenue officer, never attempting to “pull the wool” over Appellant’s eyes. Appellant argues that Debtor’s subsequent cooperation in assisting Appellant in collecting the past due taxes is irrelevant to the issue of willfulness. This Court agrees. Willfulness requires only the commission of a “voluntary, conscious, and intentional act.” Mazo, 591 F.2d at 1154. A responsible person acts “willfully” within the meaning of Section 6672 when he pays other creditors in preference to the IRS knqwing that withholding taxes are due. Id. See also Smith, 894 F.2d at 1554 (<HOLDING>); Hornsby, 588 F.2d at 953 (finding willfulness Holdings: 0: holding that in a proceeding to recover taxes from a nonbankrupt taxpayer the taxpayer has the burden of proving that his taxes complied with the internal revenue code 1: holding that even where taxpayer did not have the financial means to pay all of the taxes owed the taxpayer still willfully evaded tax obligation 2: holding that a plaintiff cannot assert a statutory claim for wages under the labor law if he has no enforceable contractual right to those wages 3: holding that taxpayer did not disprove willfulness where there was evidence he paid employees their net wages despite his knowledge that taxes were due 4: holding unemployment taxes accrued when employees were terminated not when the amount of compensation taxes are determinable


Input: in light of the potential for recovery of attorney fees in the arbitration proceeding); Stenzel, 2005 ME 37, ¶29, 870 A.2d 133 (rejecting the plaintiffs’ argument that the costs of arbitrating individual claims precluded them from obtaining relief because, pursuant to federal and Texas law, the party challenging the arbitration clause must present a detailed showing of the arbitration costs and the plaintiffs had failed to do so). {49} The district court afforded the parties a second opportunity to explore whether the agreement should be set aside as unconscionable. It requested additional briefing on this issue, and then conducted a second hearing. However, Fiser introduced no evidence showing he could not fully pursue his claim in arbitration. See FirstMerit Bank, 52 S.W.3d at 757 (<HOLDING>). Fiser claims that the class action ban Holdings: 0: holding that plaintiff failed to carry his burden to show that arbitration was cost prohibitive because he has provided no evidence of the specific costs or arbitration fees or his financial inability to afford  them 1: holding that the plaintiffs failed to establish unconscionability based upon the alleged excessive cost of arbitration because they failed to supply information as to the actual costs that might be incurred 2: holding that where the defendants  107 claim was based on remediation costs they incurred and may incur in the future as the result of a lawsuit instituted under  107a they did not demonstrate that they incurred necessary costs of response within the meaning of  107a 3: holding that the plaintiff had failed to establish procedural unconscionability since he had a reasonable opportunity to consider the agreement and the arbitration clause was clearly set forth in the contract 4: holding that because plaintiffs failed to prove that their incurred fuel characterization and loading costs would not have been incurred in the nonbreach world plaintiffs were not entitled to recovery for these costs


Input: probable than those inferences in favor of the movant to create a factual dispute, so long as they reasonably may be drawn from the facts. When more than one inference can be reasonably drawn, it is for the trier of fact to determine the proper one. Id. Thus, if a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant the summary judgment motion. See Augusta Iron & Steel Works, Inc., 835 F.2d at 856. In ruling on a motion for summary judgment, it is well-established that the court may neither adjudge the credibility of the witnesses nor weigh the evidence. See Pita v. State Street Bank and Trust Co., 666 So.2d 268, 268 (Fla.3d Dist.Ct.App. 1996) (<HOLDING>); Juno Indus., Inc. v. Heery Int’l, 646 So.2d Holdings: 0: holding that it is trial courts function to evaluate witness credibility and weigh conflicting evidence 1: holding that it is function of trial court to judge witnesses credibility and to weigh conflicting evidence 2: holding that in resolving sufficiency of evidence appeals court does not weigh evidence or review credibility of witnesses 3: holding that a successor judge may consider a motion for new trial in a case tried to the court where she is not required to weigh conflicting evidence or pass upon the credibility of witnesses but can resolve such issues  upon evidence which is not materially in conflict 4: holding that on a motion for summary judgment it is settled that a trial court is not permitted to weigh material conflicting evidence or pass upon the credibility of the witnesses


Input: is disabled, but rather whether the ALJ’s findings were supported by substantial evidence. For the following reasons, we hold that the ALJ’s findings were sufficiently supported to pass muster under our deferential standard of review. A. Extent of Disability Plaintiff first contends that the ALJ’s findings were not supported by substantial evidence because he failed to consider the SPD’s full effects in finding Plaintiff not disabled. In determining the extent of Plaintiffs disability, the Secretary must consider the physical abilities,. mental impairments and any other impairments. 20 C.F.R. §§ 404.1545; 416.945. In making such assessments the Secretary is entitled-to rely on the conclusions of qualified expert medical professionals. Moothart v. Bowen, 934 F.2d 114, 116 (7th Cir.1991) (<HOLDING>). At Plaintiffs hearing the ALJ received the Holdings: 0: holding that a courts role in reviewing an administrative agency decision is limited to determining if there is substantial evidence in the record as a whole to support the agencys findings and conclusions and to determine if the administrative decision is premised upon an erroneous conclusion of law 1: holding that a reviewing court has the power to reject the findings and conclusions of the trial court where the findings are not supported by the evidence 2: holding review of sufficiency of evidence of juvenile adjudication is same as reviewing substantial evidence to support a criminal conviction 3: holding that reviewing courts will review the engineers decision for substantial evidence 4: holding that the findings of reviewing physicians constituted substantial evidence in support of the secretarys decision to deny benefits


Input: the brief of a pro se appellant, Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993), and thus read Hulsey's brief to argue that Owens and Green are not immune from suit or liability for damages. 2 . Heck v. Humphrey prevents an action for damages under 42 U.S.C. § 1983 when the complaint, directly or indirectly, challenges the legality of the complainant's conviction or imprisonment. Id. at-, 114 S.Ct. at 2372. A § 1983 plaintiff must first prove that his conviction or sentence has been invalidated in a proper pro ceeding prior to bringing a § 1983 action. Id. If the sentence or conviction has not been invalidated there can be no action for damages under § 1983, and the statute of limitations does not begin to run. Id.; see also Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir.1994) (<HOLDING>). Consequently, the statute of limitations on Holdings: 0: holding that that if the success of a  1983 damages claim brought by a prisoner would necessarily imply the invalidity of his conviction or sentence the prisoner may only bring the claim where the conviction or sentence has been invalidated 1: recognizing that  1983 action does not accrue until conviction or sentence has been invalidated 2: holding that right to payment does not accrue until condition precedent has been fulfilled 3: holding that a claim for damages that would invalidate a conviction or sentence that has not already been invalidated or reversed on direct appeal by executive order by an authorized state tribunal or by a writ of habeas corpus is not cognizable under  1983 4: holding that a plaintiff requesting relief under  1983 had no cause of action unless and until the conviction or sentence is reversed expunged invalidated or impugned by the grant of a writ of habeas corpus


Input: the underlying crimes. But a court also cannot be expected to accept wholesale unsubstantiated accusations of egregious police misconduct. This conclusion is not based on an unreasonable understanding of Strickland or an unreasonable view of the facts. See 28 U.S.C. § 2254(d). Even if Bynum had testified, the only support for his claims of coercion would have been his own uncorroborated and self-serving testimony. He did not present any physical evidence of coercion or first-hand witness accounts of the interrogations. Without more support to Bynum’s story, it was permissible for the state appellate court to conclude that there was not a reasonable probability that the trial court would have accepted By-num’s version of events. See Mahaffey v. Page, 151 F.3d 671, 683-84 (7th Cir.1998) (<HOLDING>), overruled on other grounds by Mahaffey v. Holdings: 0: holding that testimony given by a defendant in support of a motion to suppress cannot be admitted as evidence of his guilt at trial 1: holding that the district court did not abuse its discretion by finding that defendant had waived the opportunity for a suppression hearing on his confession by first moving to suppress the confession orally at the start of trial when no motion to suppress was filed no hearing requested and no objection to the admission of the statements was made 2: holding that when defendant failed to appear at scheduled suppression hearing the court could have decided the motion in defendants absence but it did not have the authority to refuse to consider it 3: holding that consistent testimony given by three officers made it unlikely that defendants motion to suppress his confession as coerced would have been granted even though two witnesses to the interrogation had not testified at suppression hearing 4: holding that petitioner was not prejudiced by counsels decision not to call sole witness to petitioners alleged beating at suppression hearing because testimony of arresting officers and assistant attorneys as well as absence of physical evidence of coercion made it unlikely that motion to suppress the confessions would have been granted


Input: that when he interviewed Lewis she never mentioned anyone besides Slovik throwing pool balls, but she did state that Featherstone pushed Slovik to the ground and then kicked him, and that Buckley-Stoffel and Featherstone did not plan to inform the police about either that or the parking lot fight. 4 . After briefing, oral argument, and publication of an opinion in this case, the State argued for the first time in a petition for rehearing that Slovik did not sufficiently raise a Confrontation Clause argument in state court proceedings. Moreover, Slovik apparently cannot return to state court to raise a Confrontation Clause claim because he failed to raise the argument in his original state habeas petition. See In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729, 760 (1993) (<HOLDING>). Accordingly, Slovik is no longer subject to Holdings: 0: holding that a writ of habeas corpus cannot be used to review the weight of evidence   1: holding that district court must resolve all claims for relief premised on alleged constitutional violations which are raised in a petition for writ of habeas corpus whether habeas relief is granted or denied 2: holding that managing conservator while in texas to seek return of child by writ of habeas corpus may not be served with civil process and is subject to jurisdiction of court in which habeas corpus is pending and only for purpose of prosecuting writ of habeas corpus 3: holding that absent justification for the failure to present all known claims in a single timely petition for writ of habeas corpus successive andor untimely petitions will be summarily denied 4: holding that a writ of habeas corpus cannot be used to review the weight of evidence


Input: documents have not been disclosed to anyone outside of the EPA. Id. ¶¶ 48, 52. Defendant has further established that disclosure of the Redacted and Withheld Documents would reveal Defendant’s enforcement practices and strategies, which could in turn allow Plaintiff other regulated entities to avoid detection and interfere with enforcement by providing Plaintiff with advance notice of Defendant’s analytical approach and the weight to be accorded various factors. Id. ¶¶ 43, 44. Plaintiff asserts that the records at issue involve data and calculations or are spreadsheets (“Numerical Information”) used by Defendant in its civil and administrative actions under the CAA, and that the Numerical Information is “purely factual” and may not therefore, be shielded from disclosure under the (<HOLDING>). Moreover, the record indicates that agency Holdings: 0: holding that a document does not become nondeliberative if facts are included in the deliberations 1: holding that if facts are in dispute jury is given authority to resolve them 2: holding that the district court may adopt facts contained in the psr without further inquiry if the facts have an adequate evidentiary basis and the defendant does not present rebuttal evidence 3: holding that jurisdiction exists for determining if disputed facts are material 4: holding that a rule 3850 motion based upon new facts or a significant change in the law must be filed within two years of the time such facts become known or such change is announced


Input: any proof that the LLNL BSL-3 facility is more prone or attractive to terrorist theft and release of a pathogen by an outsider than any other BSL-3 facility. To the contrary, the record reveals that LLNL is actually one of the most heavily guarded federal facilities, in contrast to hundreds of relatively unguarded BSL-3 facilities nationwide. Given that there are more than 1,300 other BSL-3 facilities nationwide, many of which lack the safeguards of LLNL’s BSL-3 facility, and further, given that many of the BSL-3 pathogens also exist in the natural environment, DOE reasonably concluded that the construction of a BSL-3 facility at LLNL did not change the status quo, and therefore found no significant impact. See Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, 116 (9th Cir.1980) (<HOLDING>). Accordingly, we find that the DOE reasonably Holdings: 0: holding that the stay put provision establishes a strong preference but not a statutory duty for maintenance of the status quo 1: holding that a claim regarding postdischarge conduct that does not impact the bankruptcy estate in any way does not fall under title lls jurisdictional umbrella 2: holding that the explicit status quo provisions together with   2 first form an integrated harmonious scheme for preserving the status quo from the beginning of the major dispute through the final 30day coolingoff period 3: holding that where a proposed project does not alter the status quo then it does not have a significant impact 4: holding that filing an answer  does not invoke the status as a defendant in plaintiffs lawsuit


Input: influence of sympathy,” because the claim was raised on federal habeas and a ruling for the petitioner would constitute a “new rule” of constitutional law); Boyde v. California, 494 U. S. 370 (1990) (upholding death sentence where jurors reasonably may have believed that they could not consider the defendant’s mitigating evidence regarding his character and background); Walton v. Arizona, 497 U. S. 639 (1990) (affirming placement upon the defendant of the burden to establish mitigating circumstances sufficient to call for leniency). The Court has also refused to hold the death penalty unconstitutional per se for juveniles, see Stanford v. Kentucky, 492 U. S. 361 (1989), and the mentally retarded, see Penry v. Lynaugh, 492 U. S. 302 (1989). 7 See Arave v. Creech, 507 U. S. 463 (1993) (<HOLDING>); Lewis v. Jeffers, 497 U. S. 764 (1990) Holdings: 0: holding that mentally retarded capital murderers are constitutionally ineligible for death penalty 1: holding that an idaho statute as interpreted by the idaho supreme court which authorizes the death penalty for those murderers who have displayed utter disregard for human life genuinely narrows the class of deatheligible defendants 2: holding that leaning towards the death penalty is not the same as an automatic vote for the death penalty 3: holding that aggravating circumstance of utter disregard for human life was not facially invalid when construed by state supreme court to refer to coldblooded pitiless slayer 4: holding that the death penalty is unconstitutional as applied to juvenile defendants


Input: injury, sickness, or disease. The Penn National policies contain no language requiring the cause of injury to be identifiable before coverage is triggered. Our interpretation of the Penn National policies is confirmed by comparable cases applying the first manifestation rule to determine trigger of coverage under third party liability insurance policies. These cases consistently identify the initial manifestation of injury as the trigger of coverage. See D’Auria, 507 A.2d at 862 (“[A]n ‘occurrence’ happens when injury is reasonably apparent, not at the time the cause of injury occurs.”) (emphasis in orig inal); App the effects of an injury caused by the tort of wrongful use of civil proceedings first manifested when the wrongful suit was filed); Appalachian Ins. Co., 676 F.2d 56 (<HOLDING>). In these cases, there was no potential for an Holdings: 0: holding that the effects of injury caused by discriminatory employment policies first manifested when the policies were implemented 1: holding that where policies exclude coverage for injuries that are intended or expected the exclusion is applicable if the insured acts with the intent or expectation that bodily injury will result even though the bodily injury that does result is different either in character or magnitude from the injury that was intended 2: holding that an injury is not within the scope of employment after the employee has left work unless the injury was caused by the employers negligence 3: holding that where the employment of the injured employees was the occasion of the injury the injuries arose out of employment 4: holding that employment practices which are neutral in form but which result in discriminatory effects are prohibited unless justified by business necessity


Input: in the trial court on the grounds now asserted, defendant is deemed to have waived the objection on appeal. CRE 103; People v. Watson, 668 P.2d 965 (Colo.App.1983). Kruse, 819 P.2d at 551 (Van Cise, J., dissenting). We agree with Judge Van Cise. The protection provided by section 16-8-107(1) should not have been addressed by the court of appeals. The general rule is that failure to make a timely and sufficient objection during the trial constitutes a waiver of that ground on appeal. Larkin v. People, 177 Colo. 156, 160, 493 P.2d 1, 3 (1972); People v. Browning, 809 P.2d 1086, 1088 (Colo.App.1990). Kruse waived his objection to the admission of Ortiz’s testimony under section 16-8-107(1) by failing to properly object at trial. People v. Watson, 668 P.2d 965, 966-67 (Colo.App.1983) (<HOLDING>). An exception to the general rule exists, Holdings: 0: holding that defendant must have clearly objected at trial to the matter he is raising on appeal 1: holding that appellate court could not consider objection to testimony when defendant objected at trial on different grounds 2: holding that error was preserved when defendant objected to question regarding defendant was under arrest immediately following question about postarrest event sufficient to put trial court on notice of appellants state constitutional grounds for objection 3: holding party may not argue one ground at trial and another on appeal where appellant did not object to testimony at trial on the grounds raised on appeal that it was improper character evidence but objected only on the basis of relevancy issue was not preserved for review 4: holding that claims based on grounds not objected to at trial cannot be considered on appeal


Input: an underground pipe system, is a common usage. See also, Voelker v. Delmarva Power & Light Co., 727 F.Supp. 991 (D.Md.1989). Moreover, we have uncovered no case, in Maryland or any other jurisdiction, in which a natural gas utility company was held strictly liable for injuries based on the theory that the distribution of natural gas is an abnormally dangerous activity incapable of being carried out without significant risk. Many cases specifically hold to the contrary. See, e.g., Auriemme v. Bridgeport Gas Co., 21 Conn.Supp. 66, 144 A.2d 701 (Conn.Super.1958) (distinguishing natural gas distribution from the category of other activities, including natural gas storage that have been held inherently dangerous). See also Zamora v. Mobil Oil Co., 104 Wash.2d 199, 704 P.2d 584, 587 (1985) (<HOLDING>); New Meadows Holding Co. v. Washington Water Holdings: 0: holding that gas line is not improvement 1: holding that injury caused by criminal fleeing after stealing gas from gas station was not foreseeable result of stations policy of not requiring customers to prepay for gas 2: holding that a cause of action on the theory of strict liability may be properly pled by alleging 1 the manufacturers relationship to the product in question 2 the unreasonably dangerous condition of the product and 3 the existence of a proximate causal connection between the condition of the product and the plaintiffs injury 3: holding plaintiffs were properly enjoined from using excessive amounts of gas not contemplated by the free gas clause in the lease 4: holding propane gas to be an inherently dangerous product


Input: ("In order to estab lish a manufacturing defect, the plaintiffs must prove that ‘the finished product deviates, in terms of its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous.’ ” (quoting Grinnell, 951 S.W.2d at 434)). 18 . See, e.g., Ridgway, 135 S.W.3d at 600. 19 . Restatement (Third) of Torts: Products Liability § 2(a) (1998); see also id. § 1 cmt. a ("A manufacturing defect is a physical departure from a product’s intended design.”). 20 . Cooper Tire, 204 S.W.3d at 807 (citing Tex. Civ. Prac. & Rem.Code § 82.005). 21 . See id. at 807. 22 . Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 137 (Tex.2004) (discussing Ridgway, 135 S.W.3d at 601). 23 . See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex.2006) (<HOLDING>); Nissan Motor Co., 145 S.W.3d at 137 (holding, Holdings: 0: holding that jurors do not need expert testimony on matters of common knowledge 1: holding that expert testimony was required to establish causation in products liability case because a lay jurors general experience and common knowledge do not extend to whether design defects such as those alleged in this case caused releases of diesel fuel during a rollover accident 2: holding that expert testimony should not be admitted as to a matter that is obviously within the common knowledge of jurors because such testimony almost by definition can be of no assistance 3: holding that expert testimony is unnecessary where the case is not a case in which lay jurors would be unable to grasp the issues without expert assistance 4: holding plaintiff in a defective design case failed to establish a prima facie case because plaintiffs expert identified an alternative design that was not feasible at the time of manufacture and thus failed to prove that defendants design was not state of the art


Input: Securities Act of 1933. Dissent at 1433. The Supreme Court's decision in Blue Chip, however, takes precisely the opposite approach: it interprets the differing language of the two Acts as evidence of the Acts’ differing ambits. See Blue Chip Stamps, 421 U.S. at 733-734, 95 S.Ct. at 1924-1925 (noting that Congress' use of the term "in offer or sale” in the 1933 Act showed that "when Congress wished to provide a remedy to those who neither purchase nor sell securities, it had little trouble in doing so expressly”). To ignore the linguistic differences between the definitions in the two Acts is to suggest implicitly that Congress did not know what it was doing when it chose the differing language. This we refuse to do. 6 . See Blue Chip Stamps, 421 U.S. at 733 n. 5, 95 S.Ct. at 1924 n. 5 (<HOLDING>) (emphasis in original). 7 . The dissenting Holdings: 0: holding that a claim arises from the purchase or sale of a security only if there is an allegation of fraud in the purchase sale or issuance of the  instrument 1: holding that the wording of  10b making fraud in connection with purchase or sale of security a violation of the act is surely badly strained when construed to provide a cause of action not to purchasers or sellers of securities but to the world at large 2: holding that section 10b violation occurs on date of alleged misrepresentation not the date of the sale or purchase of securities 3: holding that for a section 10b violation the sec must prove that the defendant in connection with the purchase or sale of securities made a materially false statement or omitted a material fact with scienter and that the plaintiffs reliance on the defendants action caused injury to the plaintiff 4: holding only purchasers and sellers of securities can recover under section 10b and rule 10b5


Input: in determining that Mrs. Barr was entitled to only 50% of the net sales proceeds. While I agree that foreclosure was correct, there is no legal justification for concluding, as the majority opinion does, that the propriety of foreclosure is somehow dependent upon a particular distribution of proceeds. I also strongly reject the majority opinion’s surprising conclusion that Michigan law requires us to treat a forced sale for tax purposes as identical to a consensual sale. For these reasons, I respectfully dissent. A. The District Court’s Order of Foreclosure It is undisputed that the government had the right to request, pursuant to 26 U.S.C. § 7403, that the district court order the sale of the Residence. United States v. Rodgers, 461 U.S. 677, 680, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983) (<HOLDING>); United States v. Craft, 535 U.S. 274, 283, Holdings: 0: holding that the confirmation statute does not inhibit subsequent sale under power of property other than the property which at a former sale under power had failed to bring the amount of the debt  1: holding that after a judgment entry grants a decree of foreclosure and order of sale the foreclosure action cannot be dismissed as the judgment is final 2: holding that  7403 grants power to order the sale 3: holding that when a district court expressly grants leave to amend it is plain that the order is not final 4: holding that an order authorizing a sale is a final judgment


Input: and safety during the 2007 China summer program trip. Every public school shares this common-sense duty to protect the health and safety of students in its care, Connecticut General Statutes § 10-220, but this duty may be heightened for boarding schools, institutions that accept responsibility for students’ well being. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654-55, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); cf. Loomis Inst. v. Town of Windsor, 234 Conn. 169, 172, 661 A.2d 1001 (1995) (reasoning that on-campus “faculty members, unlike off campus faculty members, act in loco par-entis to boarding students and must be available on a twenty-four hour basis to take care of any problems that may occur at the school.”); accord Andreozzi v. Rubano, 145 Conn. 280, 282, 141 A.2d 639 (1958) (<HOLDING>). Further, a boarding school may create a legal Holdings: 0: holding that party standing in loco parentis has standing to seek custody of child 1: recognizing that teachers are not merely instructors in sciences and letters they are authority figures role models behavioral examples surrogate parents after a fashion teachers stand in loco parentis children learn much more from their teachers than the quadratic equation and the proper spelling of dirndl  they learn important values and morals one of the most important values children learn from their teachers is respect for the law 2: holding that grandmother in loco parentis of her three grandchildren had protected liberty interest in their future care and custody 3: holding that teachers stand in loco parentis toward a pupil in matters of discipline and security 4: holding that a grandmother who frequently babysat her granddaughter was not in loco parentis and thus lacked standing to seek custody of her granddaughter


Input: camps have staked out three general positions on the use of an alleged violation of the ECOA after the statute of limitations has run. 1. Position # 1: A debtor can only asseH an ECOA violation as a counterclaim. A number of state and federal courts have held the only remedy provided for an ECOA violation is an offensive action for damages brought within two years of the violation. See 15 U.S.C. § 1691e(a), (b), (d), (f) (providing expressly for a civil cause of action for actual and punitive damages as well as attorney fees and costs against a creditor who violates the ECOA). Consequently, these courts have refused to recognize the validity of an ECOA violation asserted as an affirmative defense. See, e.g., F.D.I.C. v. 32 Edwardsville, Inc., 873 F.Supp. 1474, 1480 (D.Kan.1995) (<HOLDING>); Riggs Nat’l Bank of Washington, D.C. v. Holdings: 0: holding that an ecoa violation is not properly asserted as an affirmative defense to liability and should instead take the form of a compulsory counterclaim 1: holding a plaintiff cannot assert a violation of the ecoa as an affirmative defense 2: holding defendant was entitled to assert an ecoa violation as an affirmative defense to avoid only her liability because to do otherwise would be to enforce conduct that is forbidden by the ecoa 3: holding even though an affirmative action for damages is barred the debtor may assert an ecoa violation defensively in the nature of recoupment 4: holding the recoupment doctrine could allow a spouse to assert an ecoa affirmative defense against a creditor even after the statute of limitations had run


Input: or dilute the Hensley trademark”, established by conduct over the course of 10 years (Id. at ¶ 38). Defendant Hensley’s primary argument — that the only contract at issue is the February 1994 license agreement — is rebutted by Plaintiffs complaint. Plaintiff alleges both a February 1994 agreement (or agreements) and an oral agreement (“established by conduct”) relating to the trademarks at issue in this suit. However, it is also clear that Plaintiff has not alleged a breach of any term of the February 1994 agreement (or agreements) that it references in ¶ 18-19. Thus, Plaintiffs entire breach of contract claim rests on a violation of the alleged oral agreement requiring Defendant to absta any claim of dilution. Herman Miller, Inc. v. A. Studio S.R.L., 2006 WL 2456218 (W.D.Mich.2006) (<HOLDING>). Proving Plaintiffs breach of contract claim Holdings: 0: holding that nominative fair use is an affirmative defense to a prima facie case of likelihood of confusion similar to the fair use defense 1: holding that the penalty is applicable 2: holding that the ordinary concept of use as applied in determining the existence of a nonconforming use must yield to the realities of the business in question and the nature of its operations 3: holding that fair use is an affirmative defense 4: holding that the concept of fair use is applicable in cases of alleged dilution


Input: controlling. Indeed, reading the two guilty verdicts together, the jury did find all of the elements of assault with a deadly weapon upon a government official. But it is plain error for a judge to amend a verdict to create a greater offense when the jury returned a verdict of guilty of a lessor offense. To hold otherwise would effectively allow the trial court to eviscerate the role of the jury by changing the jury’s verdict to create an offense greater than the one found by the jury. Such an encroachment upon the function of the jury would unfairly violate a defendant’s right to due process under the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution. See State v. Tolley, 290 N.C. 349, 373, 226 S.E.2d 353, 371 (1976) (<HOLDING>). But we disagree with the defendant’s Holdings: 0: holding that due process of law requires all courts to insure that elementary fairness toward one charged with an offense is not infringed 1: holding that due process requires appellate courts to scrutinize the sentencing process to insure that sentences are based on reliable information 2: holding that due process requires state courts to make an affirmative showing that a guilty plea is intelligent and voluntary 3: holding that due process requires a hearing appropriate to the nature of the case 4: holding due process clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the charged offense and new york law that requires the defendant in a second degree murder prosecution to prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter when no element of the charged offense is presumed does not violate the due process clause


Input: and Seizure: A Treatise on the Fourth Amendment § 9.2(a) (5th ed. 2012) (discussing Terry as permitting a stop or seizure when an officer reasonably suspects a person has committed, is committing, or is about to commit a crime). As noted above, the officer who frisked Terry did so not because he believed Terry had committed a crime, but because he believed Terry was going to do so. Accordingly, if an officer reasonably suspects a person is about to commit a crime, a protective pat search is warranted in the interests of officer and community safety. United States v. Peep, 490 F.2d 903, 905 (8th Cir. 1974) (concluding a pat search for weapons reasonable when officers knew the defendant had bragged about shooting a police officer); State v. Gobely, 366 N.W.2d 600, 602-03 (Minn. 1985) (<HOLDING>). We are persuaded that the seizure and limited Holdings: 0: holding noknock search unconstitutional where there was no testimony or evidence that either of the suspects were violent or were known to keep weapons in their home 1: holding that the  2d11b1 enhancement was proper where a firearm and drugrelated items were found in the defendants residence where he had also engaged in conspiratorial conversations 2: holding pat search for weapons justified where defendant was in home where stolen items were found and informant reported that in at least one robbery the participants had been armed 3: holding that a warrant authorizing the search of a residence vehicles at the residence and all persons found in the residence was not overly broad given that search was limited to places were drugs or weapons might be found 4: holding search of armed robbery defendants suitcases and between mattresses of hotel room proper where at time of arrest officers were aware that the defendants had used several different weapons during the robberies and that one weapon a loaded revolver was in plain view concluding officers reasonably feared that someone else was going to come to the room who knew where the other weapons were or that the defendants would position themselves to take advantage of any hidden weapons or instrumentalities


Input: the sentence entered by the trial court is illegal and must be set aside.” 12 S.W.3d at 800 (emphasis added) (footnote omitted). We determined that, [o]n remand, the trial court may impose a sentence that is mutually agreeable to the State and appellant, so long as the sentence is available under the 1989 Act. If an agreement is not reached, though, appellant may withdraw his guilty plea and proceed to trial on the original charges. Id. Thus, McLaney and McConnell stand for the proposition that, when a defendant bargains for and receives an illegal sentence, the defendant will have the option of resentencing on the original plea or withdrawal of the plea and recommencement of the prosecution. See also Henderson v. State ex rel. Lance, 220 Tenn. 520, 419 S.W.2d 176, 178-79 (1967) (<HOLDING>). These cases recognize that where “the Holdings: 0: holding that defendant was entitled to withdraw guilty plea upon habeas corpus proceedings where he pled guilty in exchange for an illegal sentence 1: holding that a motion to withdraw a guilty plea was not pending because nothing was left for the court to decide 2: holding circuit court had subject matter jurisdiction to accept a guilty plea where defendant was not indicted for the charge to which he pled guilty but signed a sentencing sheet which established defendant was notified of the charge to which he pled guilty 3: holding that a defendant must demonstrate that he would not have pled guilty but for the error 4: holding that the defendants guilty plea was valid where the district court carefully questioned the defendant about whether he understood the consequences of his guilty plea


Input: no evidence of fraud on the face of the arbitration award. As to Piceo’s claim that GE breached the 1994 settlement agreement by relocating his position, the district court said that Picco was bound by the settlement agreement to arbitrate that claim. Because he had not arbitrated that particular claim, the district court refused to consider it in the first instance. On appeal Picco primarily challenges the district court’s conclusion that he failed to point to fraud on the face of the arbitration award. Indiana law provides limited grounds for vacating an arbitration award, and those grounds are listed in the Indiana Uniform Arbitration Act. See Ind.Code § 34-57-2-13; Sch. City of E. Chi, Ind. v. E. Chi. Fed’n of Teachers, Local No. 511, A.F.T., 622 N.E.2d 166, 168 (Ind.1993) (<HOLDING>); Fort Wayne Educ. Assoc. v. Fort Wayne Cmty. Holdings: 0: holding that judicial is review available in the absence of an agreement for arbitration or some other form of final resolution of a dispute 1: holding that judicial review of arbitration awards is narrow in scope 2: holding that explanations of arbitration awards are not required 3: recognizing such a ground for judicial review of arbitration awards in this circuit 4: holding that minnesotas arbitration statutes govern appraiser decisions and appraisal awards are to be treated as arbitration awards


Input: to regulate them, “ ‘[a]ny effect they have on the lending activities of a federal savings association is incidental rather than material.’ ” (Lopez, supra, at p. 742.) Here, plaintiffs are not attempting to employ the UCL to enforce a state law purporting to regulate the lending activities of a federal savings association, as was the case in Lopez v. Washington Mut. Bank, FA, supra, 302 F.3d 900. (Lopez v. World Savings & Loan Assn., supra, 105 Cal.App.4th at p. 742.) Rather, they are using it to enforce federal law governing the operation of federal savings associations. Cases addressing other federal preemption statutes suggest that use of the UCL is not preempted under these circumstances. As noted in Washington Mutual Bank v. Superior Court, supra, 75 Cal.App.4th at page 787 (<HOLDING>), “private state causes of action are not Holdings: 0: holding that a ucl cause of action is not preempted by respa and regulation x 1: recognizing the cause of action 2: recognizing cause of action 3: holding that dismissal is proper for a derivative cause of action but not for a direct cause of action 4: holding that pma process is not specific regulation because the requirements are not contained in formal regulation


Input: taxable. In reaching this conclusion, we place considerable emphasis on the nature of the funds that the Commissioner found taxable. Section 104(a)(2) excludes from taxation “the amount of any damages received ... on account of personal injury or sickness.” (emphasis supplied). Language is not infinitely elastic, and here, the disputed prejudgment interest simply does not comprise “damages” within the meaning of section 104(a)(2). We explain briefly. Under the applicable Rhode Island statute, prejudgment interest is awarded in all civil cases, not just in personal injury cases. See R.I. Gen. Laws § 9-21-10. This interest is separate and distinct from damages, and is awarded mainly to compensate for delay in payment. See Foster v. Quigley, 94 R.I. 217, 179 A.2d 494, 495 (1962) (<HOLDING>); accord Balian v. Allstate Ins. Co., 610 A.2d Holdings: 0: recognizing private right of action 1: holding that the right to drive is not a fundamental right 2: recognizing that a person has been seized within the meaning of the fourth amendment only if in view of all of the circumstances surrounding the incident a reasonable person would have believed that he was not free to leave 3: holding that the fourth amendment right implicated in a malicious prosecution action is the right to be free of unreasonable seizure of the person 4: holding that prejudgment interest for damages to the person is not of the substance of the right of action but exclusively an incident attached thereto by legislative fiat after such right has been adjudicated


Input: unfair, or improper means; and (iv) the defendants’ acts injured the relationship.” Scutti Enters., LLC. v. Park Place Entm’t Corp., 322 F.3d 211, 215 (2d Cir.2003). Counterclaim 4 simply recites the elements of a claim for tortious interference with prospective business relations . without alleging facts to support this claim. Importantly, it fails to identify the business relationships and third parties to those relationships on which the claim is based. It fails to set forth any facts regarding the “improper, deceptive, illegal or fraudulent conduct” in which Plaintiff and Counter-Defendants engaged. Such conclusory allegations are insufficient to state a claim. See Advanced Global Tech. LLC v. Sirius Satellite Radio, Inc., 15 Misc.3d 776, 836 N.Y.S.2d 807, 812 (N.Y.Sup.Ct.2007) (<HOLDING>). To survive a motion to dismiss, a pleading Holdings: 0: holding that plaintiffs conclusory allegations were insufficient to make out prima facie case for mere department status of foreign corporation defendant 1: holding that plaintiffs allegations that defendant engaged in coercive business practices without justification entirely out of malice and without normal economic selfinterest were conclusory and thus insufficient to state a claim 2: holding that allegations against nondiverse defendants must be factual not conclusory because conclusory allegations do not state a claim 3: holding that conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based citations omitted 4: holding that conclusory allegations that defendant used coercive business practices to intentionally interfere with business relations was insufficient to state a claim


Input: however, refiners that sold oil to plaintiff were required to pay a tax on that oil because plaintiff was not registered as a producer with the IRS. During that period plaintiff paid refiners approximately $178,-000 in costs attributable to this tax. Plaintiff did not pass these increased costs on to its customers, though some of them used the fuel for tax-exempt purposes. Walsh argues that the tax was erroneously or illegally collected because it met statutory requirements, and that plaintiff merits a refund on equitable considerations under an implied-in-fact contract with defendant. DECISION Plaintiff admitted during oral argument that the statutes impose a tax upon the original seller of the fuel. See Gurley v. Rhoden, 421 U.S. 200, 205, 95 S.Ct. 1605, 1609, 44 L.Ed.2d 110 (1975) (<HOLDING>). While it is not disputed that plaintiff lost Holdings: 0: holding that a retailer lacked standing to challenge a federal excise tax assessed against a thirdparty fuel supplier even where the retailer was required by contract to pay the supplier an amount equal to the excise tax upfront at the time of purchase since the alleged injury  in the form of increased fuel costs was not occasionedby the government 1: holding that the legal incidence of the kansas fuel tax falls on distributors not retailers 2: holding that the legal incidence of a federal excise tax on gasoline falls upon the statutory producer and not the purchaser of the gasoline 3: holding that a person who finds a purchaser for a property falls precisely within the statutory definition of a real estate broker 4: holding that the legal incidence of the kansas fuel tax falls on the distributor


Input: corporations, shall pay annually to the State an annual franchise tax of two dollars on each one thousand of the actual amount of capital employed in this state.” (Emphasis added.) In a series of acts, the Legislature amended the rate of taxation to maintain equality of rate between domestic and foreign corporations. In 1955, the rate for the franchise tax on both domestic and foreign corporations was increased from $2 to $2.50 on each $1,000. Act No. 74, 1955 Ala. Acts 191-92. In 1971, the Legislature again increased the tax rate on both domestic and foreign corporations, raising it from $2.50 to $3 on each $1,000 of capital stock and of capital, respectively. Act No. 103, 1971 Ala. Acts 184-86. 9 . Accord State v. Travelers Ins. Co., 256 Ala. 61, 67-68, 53 So.2d 745, 749-50 (1951) (<HOLDING>); State v. P.R. Mallory (Huntsville), Inc., 273 Holdings: 0: holding that claims of corporation vest in corporation 1: holding that the actual amount of capital employed in the state by a foreign corporation was to be based on the property of the corporation that was within the state and that was used in business transacted within the state 2: holding that a public corporation in that case a commission created to provide information about the tva is an entity separate from the state and its acts are not acts of the state  within the meaning of the state constitutions prohibition against the state creating new debts 3: holding that specific jurisdiction may not be avoided merely because the defendant did not physically enter the forum state since it is an inescapable fact of  modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines thus obviating the need for physical presence within a state in which business is conducted 4: holding that resident shareholder of s corporation is eligible for tax credit for taxes paid by corporation in another state and noting that this conclusion is consistent with the internal revenue code which provides that shareholders of an s corporation are entitled to a foreign tax credit for their share of foreign income tax paid by an s corporation


Input: Court. See V.I. Code Ann., tit. 4, § 76(a). Callwood’s petition, in contrast, was filed on November 6, 1997, after the effective date of § 76(a). A suit seeking a writ of habeas corpus, although admittedly somewhat of a hybrid, is considered civil in nature. See Santana v. United States, 98 F.3d 752, 754 (3d Cir.1996). Accordingly, by operation of § 76(a), as of October 1, 1991 the District Court of the Virgin Islands was divested of jurisdiction to consider petitions for writs of habeas corpus under territorial habeas corpus law. We have previously held that to the extent that Virgin Islands Code provisions vest jurisdiction in the District Court, they have been implicitly repealed. See Tamarind Resort Assocs. v. Government of the Virgin Islands, 138 F.3d 107, 114 (3d Cir.1998) (<HOLDING>); Moravian Sch. Advisory Bd. of St. Thomas, Holdings: 0: holding that vi code ann tit 5  76a implicitly repealed a writofreview provision that provided for jurisdiction in the district court 1: holding that habeas jurisdiction under  2241 was not repealed by  the illegal immigration reform and immigrant responsibility act of 1996 iirira 2: holding that the district court did not have jurisdiction and remanding the matter to state court 3: holding that application of the exclusive remedies provision in tax code section 4209 deprives courts of subjectmatter jurisdiction 4: holding that postconfirmation jurisdiction was proper in light of plan provision retaining such jurisdiction


Input: court with those facts relevant to the court’s appellate review of agency action. Rule 80B(d) is not intended to allow the reviewing court to retry the facts that were presented to the governmental ■ decision-maker, nor does it apply to any independent civil claims contained in the complaint. Rather, it is intended to allow the reviewing court to obtain facts not in the record that are necessary to the appeal before the court. See Palesky v. Secretary of State, 1998 ME 103, ¶¶ 5-9, 711 A.2d 129, 131-132. For example, the complainant may augment the record if there are claims of ex parte communication or bias alleged, with sufficient particularity, to have had an effect on the fairness of the governmental proceedings, see, e.g., White v. Town of Hollis, 589 A.2d 46, 48 (Me.1991) (<HOLDING>); Ryan v. Town of Camden, 582 A.2d 973, 975 Holdings: 0: holding that defendants failure to renew their motion for judgment as a matter of law which was denied by the district court when they made it at the close of the evidence limited the relief the appellate court could grant to a new trial 1: holding that seventh application for postconviction relief which was rejected because evidence on which it was based was not properly authenticated was properly filed 2: holding rule 80bd motion was properly denied because petitioner was not entitled to relief as a matter of law 3: holding that property owner was not entitled to relief under cafra because he received notice and failed to properly file a claim 4: holding that the defendants motion for discharge was premature and thus properly denied by the trial court


Input: of the March 24, 1997 Solicitation Offer and Award at line 11 is the following language: The Contractor shall begin performance within 5 calendar days and complete it within * calendar days after receiving notice to proceed. This performance period is mandatory. *See Sec. 00800, 52.023-4801 (FAR 52.211-10). Def.App. at 1. The performance period “negotiable” block was not checked. Id. Therefore, the court interprets the specific reference to FAR 52.211-10, requiring the contractor to commence within five days of the Notice to Proceed, together with the fact that the negotiable block was not cheeked to supercede and take preference over the subsequent general reference to contract provision § 52.023-703. See Air-Sea Forwarders, Inc. v. United States, 166 F.3d 1170, 1171-72 (Fed.Cir.1999) (<HOLDING>); see also Hughes Communications Galaxy, Inc. Holdings: 0: recognizing this as the general rule 1: recognizing fundamental error as an exception to the general rule of preservation 2: holding that as a general rule of contract interpretation an express reservation indeed dominates a general provision 3: recognizing general rule 4: holding that no reasonable interpretation of a general directive would create a property interest


Input: explained: Where a particular amendment' “provides an explicit textual source of constitutional protection” against a particular sort of governmental behavior “that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” We think this principle is likewise applicable here. The Framers considered the matter of pretrial deprivations of liberty, and drafted the Fourth Amendment to address it. Id. at 273, 114 S.Ct. 807 (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)); see e.g. Uboh v. Reno, 141 F.3d 1000, 1003 (11th Cir.1998) (characterizing a malicious prosecution claim as being based on the Fourth rather than Fourteenth Amendment); Tinney v. Shores, 77 F.3d 378, 380-381 (11th Cir.1996) (<HOLDING>). Here, Sims alleges the same facts in support Holdings: 0: holding that the plaintiffs claim that city encouraged private individuals to trespass on the plaintiffs land was properly a fourth amendment rather than a substantive due process claim 1: holding that there is no fourteenth amendment substantive due process right to be free from malicious prosecution and suggesting that such a cause of action might lie under the fourth amendment 2: recognizing that the integrity of the family unit has found protection in the due process clause of the fourteenth amendment 3: holding that the plaintiffs fourteenth amendment substantive due process claim was foreclosed because the fourth amendment provided protection for their claim that law enforcement officers participated in an unlawful seizure of their mobile home 4: recognizing  1983 substantive due process claim


Input: the reasonable probability of a valid claim to warrant a VA examination. The RO did not respond to Mr. Hayre’s argument regarding the failure to obtain the requested psychiatric SMRs. In July 1993, Mr. Hayre’s accredited representative filed an appeal to the Board and stated that the issue was “[wjhether the rating of [November 6, 1972] was clearly erroneous in the decision to deny the claimed nervous condition.” The representative claimed that the 1972 rating action was erroneous because the RO had failed properly to assist Mr. Hayre in developing his claim. The Board found that Mr. Hayre’s claim of CUE was not well-grounded because a breach of the duty to assist under 38 U.S.C. § 5107(a) cannot, as a matter of law, be CUE. See Caffrey v. Brown, 6 Vet.App. 377, 382-383 (1994) (<HOLDING>). Mr. Hayre appealed the Board’s decision to Holdings: 0: holding that a state agencys breach of its statutory duty to assist individuals in reestablishing their business was a tort within the meaning of the otca 1: holding that a breach of the duty to assist cannot constitute cue because claimants cannot show that fulfillment of the duty to assist would have manifestly changed the outcome of the prior decision 2: holding that cue motion is not claim for benefits and that vcaa definition of claimant cannot encompass person seeking revision of final decision based on cue 3: holding that where employee cannot establish unions breach of duty of fair representation in failing to process grievance he must abide the outcome of the contractual remedies 4: holding that missouri law applied to the plaintiffs breach of fiduciary duty claim because it is corporate law that defines the contours of that duty


Input: Frame v. Sutherland, 459 Pa. 177, 327 A.2d 623 (1974). This argument is without merit. The record is barren of any evidence concerning the circumstances of Mr. Packel’s appointment. His appointment was not before the Frame Court, and we have not been informed of any other proceeding in quo warranto in which his right to have held the office was challenged. In any event, assuming arguendo that Mr. Packel’s appointment suffered from the same defect as the defendants’ appointments in Frame, he was at least a de facto officer at the time of the filing of the petition in this'case, and thus his public acts possess the same validity as if he had been validly appointed. Falone’s argument is completely disposed of by Commonwealth ex rel. Palermo v. Pittsburgh, 339 Pa. 173, 13 A.2d 24 (1940) (<HOLDING>), a case identical in all material respects Holdings: 0: holding that mayor is a high public official 1: holding that bond and miller did not apply because the plaintiff was appointed to the city council by the mayor rather than elected by the public 2: holding the public acts of the pittsburgh director of public safety were valid even if his purported recess appointment by the mayor or was invalid because the city council was not in fact in recess 3: holding that an employment contract between an outgoing city council and the city manager was void on public policy grounds because it attempted to take away the governmental or legislative power of the incoming council to appoint and remove public officers 4: holding in the context of a case involving the availability for public inspection of criminal docket books that files in the possession of the clerk of the criminal court of the city of new york are public records which may be fully examined by any person unless the papers have been sealed from public scrutiny by the court or by the terms of a statute


Input: (quoting Harrington v. State, 200 Ala. 480, 482, 76 So. 422, 424 (1917)). “[T]he law is a reasonable master, and it should be so construed in the light of common sense in ascertain ing the legislative intent.” Stith Coal Co. v. Sanford, 192 Ala. 601, 606-07, 68 So. 990, 992 (1915). We conclude that § 26-18-5 does not establish a firm deadline beyond which a petition for termination of parental rights cannot be filed. Similarly, § 26-18-5(b), Ala.Code 1975, does not necessarily establish a “starting point” for DHR to file a petition to terminate parental rights. The starting point is not simply those conditions set out in § 26-18-5(b), but, as always, is triggered by the best interests of the child. See J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1191-94 (Ala.Civ.App.2007) (<HOLDING>). If DHR has sufficient evidence indicating Holdings: 0: holding that the mortgage conveys such interests that the mortgagee is the holder of the paramount title 1: holding that best interests of the child analysis requires consideration of all section 5328a factors 2: holding that paramount consideration in terminationofparentalrights proceeding is best interests of the child 3: holding that the primary and overarching consideration in custody determination is the best interest of the child 4: holding that the best interest of the child is the paramount concern in determining whether to order blood tests to determine paternity


Input: alleges a violation of the RFPA. Thus, without guidance from prior precedents, this court considered the plain meaning of the statute. Absent ambiguity, the plain meaning of the statute controls. See In re Canvass of Absentee Ballots of Nov. 4, 2003, 577 Pa. 231, 843 A.2d 1223 (2004); Sternlicht v. Sternlicht, 2005 Pa. LEXIS 1291 (Pa. 2005). 5 . There is some prior case law concerning the safety justification of facial hair regulations of firefighters. These cases involve so-called “negative-pressure” facial masks, as opposed to the more modern “positive-pressure” facepiece at issue in this case. It should be noted that none of the complaining parties in these cases asserted a violation of their free exercise of religion. See Kennedy v. District of Columbia, 654 A.2d 847 (D.C. 1994) (<HOLDING>) see also, Quinn v. Mascare, 425 U.S. 560 (U.S. Holdings: 0: holding that the districts facial hair regulation was discriminatory as applied to the firefighter although the department was not precluded from promulgating a reasonable grooming regulation equally applied to all requiring beards to be neatly trimmed 1: holding that where a regulation could not fairly be read to have spoken at all on an issue an agencys proposed interpretation of the regulation as it pertained to that issue was not a reasonable interpretation of the regulation 2: holding that because a police department regulation prohibiting beards allowed for medical exemptions but not religious exemptions it was not generally applicable under smith 3: holding that the challenge to a university regulation was moot because the regulation had been substantially amended 4: holding that the tdjcs prohibition on long hair and beards is rationally related to legitimate state objectives


Input: Roberts but before Crawford, the Supreme Court expressly relied on Roberts. The Court reasoned that “the co-conspirator exception to the hearsay rule [Fed.R.Evid. 801(d)(2)(E) ] is firmly enough rooted in our jurisprudence that, under this Court’s holding in Roberts, a court need not inde1 pendently inquire into the reliability of such statements.” Bourjaily, 483 U.S. at 183, 107 S.Ct. 2775. Brist is therefore correct that the Court has rejected Bour-jaily’s underlying reasoning by now requiring courts to conduct a separate Confrontation Clause analysis for out-of-court “testimonial” statements, even when the statements at issue otherwise satisfy a firmly-rooted hearsay exception. See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. 305, —, 129 S.Ct. 2527, 2540, 174 L.Ed.2d 314 (2009) (<HOLDING>); Davis v. Washington, 547 U.S. 813, 821, 126 Holdings: 0: holding that confrontation clause issues are subject to harmless error analysis 1: holding confrontation clause violations subject to harmless error analysis 2: holding that certificates of analysis produced by forensic scientists who conducted a chemical analysis of drugs seized from the defendant are subject to confrontation clause challenge wjhether or not they qualify as business or official records 3: recognizing that statements admissible under an exception to the hearsay rule may be inadmissible when tested against the confrontation clause  because confrontation clause analysis differs from hearsay rule analysis 4: holding that admission of business records does not violate the confrontation clause under roberts


Input: Circuit precedent recognizing the right, Adler v. Pataki, was decided in July 1999, and even in that case the court acknowledged that “[t]he nature and extent [of the right to intimate association] is hardly clear....” 185 F.3d at 41-42. Moreover, Adler recognized the right to intimate association between spouses, and it was not until May 2000 that the Eastern District of New York extended the right to encompass the parent-child relationship, see Sutton, 96 F.Supp.2d at 193, let alone the parent-child-in-law relationship recognized here. As such, the right to relief at issue was not clearly established at the time the individual defendants acted, and thus they are immune from suit with respect to the Mor-iarity plaintiffs. See Jenkins v. Tyler, 167 F.Supp.2d 652, 656 (S.D.N.Y.2001) (<HOLDING>). c. Collateral Estoppel Defendants argue that Holdings: 0: holding that an individual defendant was immune from suit based on a right to intimate association between mother and son that was allegedly violated by acts occurring in the year 2000 1: holding state immune from suit brought by its own citizens 2: holding that an individual is immune from antitrust liability for exercising first amendment right to petition the government 3: holding state immune from suit involving a federal question 4: holding state immune from suit brought in state court