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	JOHNSON ENTERPRISES OF JACKSONVILLE, INC. V. FPL GROUP, INC. (12/18/1998, NO. 94-3324) The structure of the opinion is as follows: Part I provides the factual background to the dispute. Part VII offers some concluding thoughts. I. The legislative backdrop against which this controversy arose was the Cable Communications Policy Act of 1984 (the
	JOHNSON ENTERPRISES OF JACKSONVILLE, INC. V. FPL GROUP, INC. (12/18/1998, NO. 94-3324) The structure of the opinion is as follows: Part I provides the factual background to the dispute. Part VII offers some concluding thoughts. I. The legislative backdrop against which this controversy arose was the Cable Communications Policy Act of 1984 (the
	01-4216 -- UTAHNS FOR BETTER V. U.S. DEPT. OF TRANSPORTATION -- 09/16/2002 The district court's jurisdiction was based upon the Administrative Procedures Act (
	COMMERCIAL V. US
	OPINION/ORDER These matters are before the court on the petition for rehearing filed on behalf of Garfield and Kane Counties. We have determined to amend the original panel opinion on page 86. A copy of the amended opinion is attached to this order. The petition for panel rehearing is otherwise denied in all respects. Most of the transportation routes of the West were established under its authority. R.S. 2477 rights of way were an integral part of the congressional pro development lands policy. The statute thus had the effect of
	OPINION/ORDER Application for Annexation Vision is a religious corporation of the State of Illinois currently located in Mundelein. It was founded in 1981. The Village of Long Grove is an 18 square mile community located in Lake County.
	OPINION/ORDER Total Myanmar was appointed Operator of the Gas Production Joint Venture and the Gas Transportation Company. Total Myanmar was responsible. For
	99-1037 -- LPG HOLDINGS INC. V. CASINO AMERICA INC. -- 11/01/2000 The district court held that LPG's claims for breach of contract and breach of the implied covenant of good faith and fair dealing were foreclosed by the unambiguous language of the parties' agreement. LPG acquired the property because it was interested in
	01-4129 -- DAVIS V. MINETA -- 06/20/2002 The widening and extension of existing 11400 South.
	OPINION/ORDER Appearing at 361 F.3d 1108 (9th Cir. 2004) is amended as follows: OCEAN ADVOCATES v. The New platform facilitates an increase in tanker traffic and is a
	OPINION/ORDER With her on the briefs were Wilma A. High were on the brief for amicus curiae Greater Washington Board of Trade. Was on the brief for amicus curiae the Commonwealth of Virginia. Were on the brief for amicus curiae Maryland State Highway Administration. With him on the brief were Mitchell F. Merritt were on the joint brief for amicus curiae the National Trust for Historic Preserva tion in the United States. I. The Woodrow Wilson Memorial Bridge is a microcosm of the Washington. More than twice the capacity the structure was designed to accommodate. Congestion is particularly acute during peak hours. These congestion problems have created harmful collateral consequences: the heavy volume on the Bridge has contributed to an accident rate nearly double that of similar facilities in the region. Has expedited the deterioration of the Bridge's structure to the point where the Bridge is projected to be structurally unsound by 2004. Reaction to the draft was less than enthusiastic. The Ad ministration was criticized for assessing inadequately the environmental and cultural impacts of its proposal.
	OPINION/ORDER 1994 is amended as follows: On the cover sheet. Harsch were on brief for appellants. Nystrom and Kirkpatrick & Lockhart were on brief for appellees Dante E. Were on brief for appellees Federal Highway Administration. '
	OPINION/ORDER We have jurisdiction pursuant to 28 U.S.C. § 1291. Cherry Point Marine Terminal Cherry Point is an approximately ten mile stretch of coastline located in the Strait of Georgia in northeast Puget Sound. The Atlantic Richfield Company (ARCO) was the original party to this suit. Physical adjustments enabled the southern platform both to unload crude oil and to load refined product so that the dock could function as it would have with both platforms. BP sought to have the 1969 permit reopened in 1977 so that it could complete the original design of the pier by building the northern platform. Before the permit was issued.
	OPINION/ORDER Circuit Judge: At issue in this case is whether it was reasonable for the National Labor Relations Board (
	OPINION/ORDER
	OPINION/ORDER Cates and Cates Construction were in contempt of an injunction that the court had previously entered and that Mr. Was liable for payments owed by K.T.E. to the plaintiffs. Cates's arguments on appeal are unconvincing and/or waived due to failure to raise the argument below. I A The facts leading to the present dispute are less complex than the litigation that resulted. Plaintiffs are several employee welfare benefit and pension plans that dispense benefits to unionized workers. K.T.E. is a Tennessee Corporation that specializes The Honorable Peter H. Its primary employees are a married couple: Donna Kelley. K.T.E. was one of the employers that contributed to the relevant funds. Which is owned and operated by Mr. Is a Kentucky corporation that performs general contractor work. It was awarded the contract to construct dormitories at Pope Air Force Base in North Carolina. KTE is responsible for submittals and submit [sic] them in a timely fashion.
	03-8034 -- GREATER YELLOWSTONE COALITION V. FLOWERS -- 03/02/2004 The property is part of a
	NAT'L FIRE INS. CO. OF HARTFORD V. FORTUNE CONSTR. CO. (2/7/2003, NO. 01-15124) District Judge:
	NAT'L FIRE INS. CO. OF HARTFORD V. FORTUNE CONSTR. CO. (2/7/2003, NO. 01-15124) District Judge:
	OPINION/ORDER District Judge: The primary issue presented by this appeal is whether a surety on construction contract performance and payment bonds issued on behalf of a subcontractor has superior rights to retained contract balances in the possession of the general contractor when the general contractor completed the performance and has unsatisfied claims against the defaulting subcontractor. The performance bond and payment bond documents for the Winston Park project were standard forms issued by the American Institute of Honorable Roger Vinson. Sitting by designation. 2 * Architects.1 The performance bond and payment bond documents for the West Brickell project were drafted by National Fire with language that materially differed from the Winston Park bonds. Both projects were behind schedule by this time. There was some discussion about National Fire procuring a completion contractor and about the possibility that Fortune could complete construction. The West Brickell project was near completion. Negotiations were still ongoing when.
	OPINION/ORDER P.A. was on brief for appellant.
	CYBOR CORP. V. FAS TECHNOLOGIES 96-1286,-1287 CYBOR CORPORATION, PLAINTIFF-APPELLANT, V. FAS TECHNOLOGIES, INC., AND FASTAR LTD., DEFENDANTS/CROSS-APPELLANTS. MAYER, CHIEF JUDGE, WITH WHOM NEWMAN, CIRCUIT JUDGE, JOINS, CONCURRING IN THE JUDGMENT. I AM COMPELLED TO CONCUR IN THE JUDGMENT OF THE COURT, BUT I RESPECTFULLY DISAGREE WITH THE OPINION BECAUSE IT PROFOUNDLY MISAPPREHENDS MARKMAN V. WESTVIEW INSTRUMENTS, INC., 116 S. CT. 1384 (1996). THE SUPREME COURT CONCLUDED THERE THAT THE HISTORICAL RECORD IS INSUFFICIENTLY FIRM TO DECLARE THAT JURIES CONSTRUED PATENT CLAIMS IN ENGLAND WHEN THE SEVENTH AMENDMENT TO THE CONSTITUTION WAS ADOPTED IN 1791. SO IT DECIDED AS A MATTER OF POLICY THAT JUDGES, NOT JURIES, ARE BETTER ABLE TO PERFORM THIS TASK GIVEN THE COMPLEXITY OF EVIDENCE AND DOCUMENTATION. THIS WAS A PERILOUS DECISION OF LAST RESORT. FOR JURIES REGULARLY RENDER VERDICTS IN CIVIL CASES BASED ON COMPLEX FORENSIC AND DOCUMENTARY EVIDENCE OF EQUAL OR GREATER DIFFICULTY THAN SEEN IN PATENT CASES. AND THE IMPLICATIONS FOR CRIMINAL CASES UNDER ARTICLE III AND THE SIXTH AMENDMENT ARE EVEN MORE PROFOUND. INCREASINGLY COMPLEX CASES INVOLVING SCIENTIFIC AND COMPLICATED DOCUMENTARY EVIDENCE ARE PRESENTED TO CRIMINAL JURIES WHICH, OF COURSE, DECIDE MATTERS OF LIFE AND LIBERTY, NOT MERELY MONEY. NEVERTHELESS, HAVING SO RULED, IT SEEMS TO ME THE COURT WOULD NOT ALSO HAVE REPEALED PART OF THE FEDERAL RULES OF CIVIL PROCEDURE AND EVIDENCE WITHOUT SO MUCH AS A MENTION THAT DISTRICT COURTS NO LONGER HAVE DISCRETION TO ADMIT EXPERT EVIDENCE, SEE DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC., 509 U.S. 579 (1993), AND NEED NOT FIND FACTS WHEN EVIDENCE IS DISPUTED IN THESE CASES. NOR WOULD IT HAVE SO EXCUSED THIS COURT FROM THE NORMAL, HISTORICAL ROLE OF APPELLATE COURTS TO REVIEW FOR REVERSIBLE ERROR, AND INSTALLED IT AS A COLLEGIAL TRIAL COURT. I. STANDARD OF REVIEW WE REVIEW THE DENIAL OF A MOTION FOR JUDGMENT AS A MATTER OF LAW DE NOVO BY REAPPLYING THE SAME STANDARD. SEE READ CORP. V. PORTEC, INC., 970 F.2D 816, 821, 23 USPQ2D 1426, 1431 (FED. CIR. 1992). UNDER THIS STANDARD, APPELLANT MUST SHOW THAT “THE JURY’S FACTUAL FINDINGS, PRESUMED OR EXPRESS, ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE OR, IF THEY ARE, THAT THE LEGAL CONCLUSIONS IMPLIED FROM THE JURY’S VERDICT CANNOT IN LAW BE SUPPORTED BY THOSE FINDINGS.” ALPEX COMPUTER CORP. V. NINTENDO CO., 102 F.3D 1214, 1221, 40 USPQ2D 1667, 1672 (FED. CIR. 1996) (QUOTING KEARNS V. CHRYSLER CORP., 32 F.3D 1541, 1547-48, 31 USPQ2D 1746, 1751 (FED. CIR. 1994)). OUR REVIEW OF CLAIM CONSTRUCTION IS CONTROLLED BY THE SUPREME COURT’S JUDGMENT IN MARKMAN, 116 S. CT. 1384, NOT THE OPINION OF THIS COURT IT REVIEWED, 52 F.3D 967, 34 USPQ2D 1321 (FED. CIR. 1995); THE SUPREME COURT DID NOT ADOPT THIS COURT’S REASONING AS ITS OWN. THOUGH IT COULD HAVE DONE SO EASILY, THE COURT CHOSE NOT TO ACCEPT OUR FORMULATION OF CLAIM CONSTRUCTION: AS A PURE QUESTION OF LAW TO BE DECIDED DE NOVO IN ALL CASES ON APPEAL.1 IF IT HAD, THERE WOULD HAVE BEEN NO NEED FOR ITS EXTENSIVE EXEGESIS ABOUT THE SEVENTH AMENDMENT AND WHETHER JURIES MUST CONSTRUE CLAIMS THAT HAVE EVIDENTIARY UNDERPINNINGS OR WHETHER THE IMPORTANCE OF UNIFORMITY IS BEST SERVED BY GIVING THESE EVIDENTIARY QUESTIONS OF MEANING TO A JUDGE. IT WOULD HAVE BEEN A SIMPLE MATTER FOR THE COURT TO GIVE SHORT SHRIFT TO THIS ARGUMENT BY PROCLAIMING CONSTRUCTION PURELY, SOLELY, AND ALWAYS A MATTER OF LAW THAT WOULD NEVER HAVE GONE TO THE JURY. THE SUPREME COURT RECOGNIZED THAT IN SOME CASES THERE WILL BE CONFLICTING EVIDENCE THAT HAS TO BE RESOLVED—WHERE THERE ARE FACTUAL DETERMINATIONS THAT ARE MORE THAN JUST INCIDENT TO CLAIM CONSTRUCTION—SUCH AS THE UNDERSTANDING OF ONE SKILLED IN THE ART AT THE TIME THE PATENT APPLICATION WAS FILED. IN THESE CASES, ALL THAT MARKMAN STANDS FOR IS THAT THE JUDGE WILL DO THE RESOLVING, NOT THE JURY. WISELY, THE SUPREME COURT STOPPED SHORT OF AUTHORIZING US TO FIND FACTS DE NOVO WHEN EVIDENTIARY DISPUTES EXIST AS PART OF THE CONSTRUCTION OF A PATENT CLAIM AND THE DISTRICT COURT HAS MADE THESE FINDINGS WITHOUT COMMITTING CLEAR ERROR. SEE FROMSON V. ANITEC PRINTING PLATES, INC., 132 F.3D 1437, 1446, 45 USPQ2D 1269, 1275 (FED. CIR. 1998) (FINDINGS OF FACT MADE BY A DISTRICT COURT TO RESOLVE DISPUTES AS TO THE MEANING OF CLAIM TERMS ARE AFFIRMED ABSENT CLEAR ERROR); EASTMAN KODAK CO. V. GOODYEAR TIRE & RUBBER CO., 114 F.3D 1547, 1555-56 42 USPQ2D 1737, 1742 (FED. CIR. 1997) (RELIANCE ON EXPERT TESTIMONY TO CLARIFY AMBIGUOUS CLAIM TERM IS ACCEPTABLE AND DEFERENCE IS GIVEN TO THE TRIAL COURT’S CREDIBILITY DETERMINATION). RATHER, WHEN THE JUDGE FINDS FACTS OR ACCEPTS THE FACTUAL DETERMINATIONS OF A JURY, THOSE FACTS ARE ENTITLED TO GREATER DEFERENCE THAN DE NOVO FACT FINDING ON APPEAL. IN FROMSON, THE TRIAL JUDGE ADMITTED EXPERT TESTIMONY TO DEVELOP THE RECORD ON THE MEANING OF THE WORD “ANODIZED,” AS IT WAS UNDERSTOOD BY ONE SKILLED IN THE ART AT THE TIME OF THE INVENTION. FROMSON, 132 F.3D AT 1444-45, 45 USPQ2D AT 1273-74. BASED ON THAT EXTRINSIC EVIDENCE, HE FOUND “IN 1973 NO REASONABLE PRACTITIONER OF THIS PROCESS WOULD HAVE HAD THE OPINION THAT A NON-POROUS NON-ADHERENT OXIDE COATING, AS THIN AS THE NATIVE 5 NANOMETER COATING FOUND NATURALLY IN THE ENVIRONMENT, OF PHOSPHORIC OXIDE, CONSTITUTED AN ANODIZED SURFACE.” ID. AT 1444, 45 USPQ2D AT 1274. THIS FINDING LIMITED THE MEANING OF THE WORD ANODIZED BEYOND WHAT A STANDARD DEFINITION REQUIRED: “[T]O SUBJECT [A METAL] TO ACTION BY MAKING [IT] THE ANODE OF A CELL BEFORE COATING WITH A PROTECTIVE OR DECORATIVE FILM.” ID., 45 USPQ2D AT 1273 (QUOTING WEBSTER’S THIRD INT’L DICTIONARY). THIS FINDING ALSO CONFLICTED WITH THE ALLEGED INFRINGER’S DESCRIPTION OF ITS OWN OXIDE COATING PROCESS AS ANODIZATION. NEVERTHELESS, THE DISTRICT COURT CONSTRUED THE WORD ANODIZED TO MEAN: “AN ELECTROLYTICALLY FORMED, ADHERENT, POROUS ALUMINUM OXIDE COATING SUFFICIENTLY THICK (MEANING THICKER THAN NATIVE OXIDE) . . . .” ID. AT 1445, 45 USPQ2D AT 1274. BECAUSE THE ACCUSED PROCESS DID NOT FORM AN OXIDE COATING THICKER THAN NATIVE OXIDE, THE DISTRICT COURT ENTERED A JUDGMENT OF NONINFRINGEMENT. EVEN HAD WE DISAGREED WITH THE CONSTRUCTION GIVEN BY THE TRIAL COURT IN FROMSON, WE WERE NOT TASKED BY OUR STANDARD OF REVIEW TO REEXAMINE DE NOVO EACH OF THE DAYS OF TESTIMONY AND VOLUMES OF RECORD RELATING TO INTERPRETATION OF THE WORD ANODIZED. THIS COURT DID NOT AFFIRM THE TRIAL COURT’S JUDGMENT BECAUSE IT HAD EDUCED THE BEST CONSTRUCTION OF THE WORD ANODIZED. IT DID SO BECAUSE THE DISTRICT COURT’S CONSTRUCTION WAS PROPERLY PREDICATED ON A FACTUAL FINDING ABOUT WHAT ANODIZED MEANT TO ONE SKILLED IN THE ART IN 1973, WHICH ON THE APPELLATE RECORD PRESENTED BY THE PARTIES WAS NOT CLEARLY ERRONEOUS. THE SUPREME COURT NEVER CONTEMPLATED IN MARKMAN THAT WE FEIGN FIRST-HAND EXPERIENCE WITH THE TECHNOLOGY, OR THAT WE EMBELLISH OUR ABILITIES BY CONSTRUING A CLAIM WITHOUT THE RESPECT DUE BOTH A TRIAL COURT’S DECISION THAT A FACTUAL DISPUTE UNDERLIES THE MEANING OF A CLAIM TERM AND ITS RESOLUTION OF THAT DISPUTE. PROVIDED THAT NO FACTUAL FINDINGS ABOUT DISPUTED TERMS WERE NECESSARILY MADE IN THE COURSE OF CONSTRUING THE CLAIM, OUR MAKING A CLAIM CONSTRUCTION THAT SUPERSEDES THAT OF THE DISTRICT COURT IS NOT INCONSISTENT WITH THE COURT’S OPINION. SEE SERRANO V. TELULAR CORP., 111 F.3D 1578, 42 USPQ2D 1538 (FED. CIR. 1997) (CONSTRUCTION OF THE CLAIMS INVOLVED NO FACTUAL DISPUTED BETWEEN THE PARTIES); INTERNATIONAL COMMUNICATION MATERIALS, INC. V. RICOH CO., 108 F.3D 316, 318-19, 41 USPQ2D 1957, 1958-59 (FED. CIR. 1997); ALPEX, 102 F.3D 1214 (USING ALPEX’S EXPERT TESTIMONY AGAINST ALPEX, THERE WERE NO FACTUAL DISPUTE BETWEEN THE PARTIES); METAULLICS SYS. CO. V. COOPER, 100 F.3D 938, 939, 40 USPQ2D 1798, 1799 (FED. CIR. 1996); INSITUFORM TECHS., INC. V. CAT CONTRACTING, INC., 99 F.3D 1098, 40 USPQ2D 1602 (FED. CIR. 1996) (ATTORNEY ARGUMENT REGARDING CLAIM CONSTRUCTION PRESENTED NO FACTUAL DISPUTE ABOUT THE TECHNOLOGY); 1 S. CHILDRESS & M. DAVIS, FEDERAL STANDARDS OF REVIEW: CIVIL CASES AND GENERAL REVIEW PRINCIPLES, §§ 2.13, 2.14 (2D ED. 1991). IF THIS COURT DOES NOT BELIEVE THE CLAIM CONSTRUCTION TO BE ERRONEOUS BASED ON AN INDEPENDENT REVIEW OF THE LEGAL CONCLUSIONS AND A REVIEW OF THE CONSTITUENT FACTUAL FINDINGS FOR SUBSTANTIAL EVIDENCE, IT MUST AFFIRM. SEE BOSE CORP. V. CONSUMERS UNION OF UNITED STATES, 466 U.S. 485, 514 N.31 (1984); SEE ALSO PULLMAN-STANDARD V. SWINT, 456 U.S. 273, 287-88 (1982). THIS COURT MAY NOT, HOWEVER, INDEPENDENTLY REVIEW THE CONSTITUENT FACTS OR DISREGARD THE JURY’S FINDINGS, ABSENT PROOF THAT THEY LACK SUFFICIENT EVIDENCE THAT “A REASONABLE MIND MIGHT ACCEPT AS ADEQUATE TO SUPPORT” THEM. CONSOLIDATED EDISON CO. V. NLRB, 305 U.S. 197, 229 (1938); SEE GENENTECH, INC. V. WELLCOME FOUND. LTD., 29 F.3D 1555, 1565, 31 USPQ2D 1161, 1169 (FED. CIR. 1994). NOR MAY WE CONSTRUE A CLAIM IN A MANNER THAT IS INCONSISTENT WITH OUR FUNCTION AS A COURT OF REVIEW; WE CANNOT DIVINE NEW INTERPRETATIONS OF TERMS IN A CLAIM OR MAKE FINDINGS OF FACT FROM A RECORD THAT CANNOT SUPPORT THEM. SEE AVIA GROUP INT’L, INC. V. L.A. GEAR CALIFORNIA, INC., 853 F.2D 1557, 1561, 7 USPQ2D 1548, 1551 (FED. CIR. 1988). SOMETIMES IT MAY BE NECESSARY FOR AN APPELLATE COURT TO PRONOUNCE NEW LEGAL PRINCIPLES DURING AN APPEAL. HOWEVER, EVEN IF THIS COURT IDENTIFIES A QUESTION OF CLAIM CONSTRUCTION AS ONE OF LAW—THOUGH ITS RESOLUTION IS RELEVANT TO ONLY THE PARTICULAR LITIGATION OR DOCUMENT—IT CANNOT ELEVATE THE ACTIVITY TO ONE OF DETERMINING LEGAL PRINCIPLES, AS IS FOR EXAMPLE, STATUTORY CONSTRUCTION. SEE MARKMAN, 116 S. CT. AT 1396 (“[I]SSUE PRECLUSION COULD NOT BE ASSERTED AGAINST NEW AND INDEPENDENT INFRINGEMENT DEFENDANTS EVEN WITHIN A GIVEN JURISDICTION . . . .”); IN RE FREEMAN, 30 F.3D 1459, 1466, 31 USPQ2D 1444, 1450 (FED. CIR. 1994); JACKSON JORDAN, INC. V. PLASSER AMERICAN CORP., 747 F.2D 1567, 1574-75, 224 USPQ 1, 5-6 (FED. CIR. 1984) (SECOND ALLEGED INFRINGER NOT BOUND BY PRIOR CLAIM CONSTRUCTION UNLESS IT HAD, INTER ALIA, A FULL AND FAIR OPPORTUNITY TO LITIGATE THE CONSTRUCTION IN THE FIRST INFRINGEMENT ACTION). THUS, REGARDLESS OF THE LABELS WE ATTACH TO THESE QUESTIONS, WITHOUT THE BENEFIT OF A FULL RECORD FROM THE TRIAL COURT, IT IS NEITHER THE FUNCTION OF THIS COURT NOR IS IT WITHIN OUR CAPACITY AS AN APPELLATE COURT TO ADOPT NEW INTERPRETATIONS, MOST ESPECIALLY NOT IF THE INTERPRETATION UNDER REVIEW IS OF TERMS INFORMED BY CONFLICTING EVIDENCE. SUCH INDISCRIMINATE AND CONCLUSIVE REVIEW DEPRIVES THE PARTIES OF IMPORTANT SUBSTANTIVE AND PROCEDURAL MECHANISMS PROVIDED IN THE TRIAL COURTS, WHERE INTERPRETATION CAN BE INFORMED BY ADDITIONAL DISCOVERY AND EXPERT TESTIMONY, AND WHERE IT CAN BE CHECKED BY APPELLATE REVIEW AS A MATTER OF RIGHT. IF CLAIM CONSTRUCTION IS ONLY A QUESTION OF LAW TO BE REVIEWED BY THIS COURT DE NOVO, THEN THE ABSENCE OF REVIEW AS A MATTER OF RIGHT OVER OUR CLAIM CONSTRUCTIONS, WHICH MAY BE NEW AND UNSUPPORTED BY LEGAL ANALYSIS, OR MAY NEVER HAVE BEEN TESTED BY THE ADVERSARIAL PROCESS, WOULD TRANSFORM THIS COURT INTO A TRIAL COURT OF FIRST AND USUALLY LAST RESORT. II. METHOD OF REVIEW TO DETERMINE WHETHER A PATENT HAS BEEN INFRINGED, A DISTRICT JUDGE MUST PARTAKE OF A TWO-STEP ANALYSIS: (1) CONSTRUCTION OF THE CLAIMS TO DETERMINE THEIR LEGAL EFFECT BY EXAMINING AND RESOLVING, INTER ALIA, FACTUAL DISPUTES OVER THE MEANING AND SCOPE OF TECHNICAL WORDS OR TERMS OF ART USED IN THE PATENT, SEE FROMSON, 132 F.3D AT 1442, 45 USPQ2D AT 1272; MARKMAN, 52 F.3D AT 999, 34 USPQ2D AT 1347 (NEWMAN, J., DISSENTING); AND (2) A COMPARISON OF THE PROPERLY CONSTRUED CLAIMS TO THE ACCUSED DEVICE, SEE CARROLL TOUCH, INC. V. ELECTRO MECHANICAL SYS., INC., 15 F.3D 1573, 1576, 27 USPQ2D 1836, 1839 (FED. CIR. 1993). THE FIRST STEP, CONSTRUCTION OF THE CLAIM, IS ULTIMATELY A QUESTION FOR THE JUDGE. SEE MARKMAN, 116 S. CT. AT 1395 (“SO IT TURNS OUT HERE, FOR JUDGES, NOT JURIES, ARE THE BETTER SUITED TO FIND THE ACQUIRED MEANING OF PATENT TERMS.”) IN CONSTRUING THE CLAIMS, A JUDGE LOOKS TO THE CLAIMS THEMSELVES, THE SPECIFICATION, THE PROSECUTION HISTORY OF THE PATENT, SEE MINNESOTA MINING AND MFG. CO., V. JOHNSON & JOHNSON ORTHOPAEDICS, INC., 976 F.2D 1559, 1566, 24 USPQ2D 1321, 1327 (FED. CIR. 1992), AND, IF NECESSARY, EXTRINSIC EVIDENCE FOR INFORMATION OR TO RESOLVE DISPUTES OVER THE MEANING OF TERMS, SEE TEXAS INSTRUMENTS, INC. V. UNITED STATES INT’L TRADE COMM’N, 988 F.2D 1165, 1171, 26 USPQ2D 1018, 1023 (FED. CIR. 1993). ALTHOUGH MARKMAN, 116 S. CT. 1384, REQUIRES THE JUDGE TO MAKE THE ULTIMATE DETERMINATION ABOUT THE MEANING AND LEGAL CONSEQUENCE OF A CLAIM, IT DOES NOT PROHIBIT HIM FROM SUBMITTING SUBSIDIARY FACTUAL DISPUTES TO A JURY, EVEN IF IT DOES NOT ENCOURAGE IT. THE JUDGE FOLLOWS THE SAME FIRST STEP TO CONSTRUE CLAIMS CONTAINING MEANS-PLUS-FUNCTION LIMITATIONS UNDER 35 U.S.C. § 112(6) (1994). SEE ALPEX, 102 F.3D AT 1220, 40 USPQ2D AT 1672; INTELLICALL, INC. V. PHONOMETRICS, INC., 952 F.2D 1384, 1388, 21 USPQ2D 1383, 1387 (FED. CIR. 1992). HOWEVER, TO COMPLETE THE CONSTRUCTION OF THESE MEANS-PLUS-FUNCTION TERMS, THE JUDGE MUST LOOK TO THE STRUCTURES, MATERIALS, OR ACTS DISCLOSED IN THE PATENT’S SPECIFICATIONS AND TO THEIR EQUIVALENTS. ID., 952 F.2D AT 1388, 21 USPQ2D AT 1387. TO DETERMINE THE SCOPE OF SUCH EQUIVALENTS, THE DISTRICT COURT MUST RESOLVE QUESTIONS OF FACT BY RESORTING TO THE EXPERTISE OF THE FACT FINDER. CF. MARKMAN, 52 F.3D AT 977 N.8, 34 USPQ2D AT 1337, N.8 (EXPRESSLY DECLINING TO REACH “THE ISSUE OF WHETHER A DETERMINATION OF EQUIVALENTS UNDER §112, PARA. 6 IS A QUESTION OF LAW OR FACT”); IN RE HAYES MICROCOMPUTER PRODS., INC., 982 F.2D 1527, 1541-43, 25 USPQ2D 1241, 1253 (FED. CIR. 1992) (“THIS LIST [OF FACTORS THAT MAY BE CONSIDERED WHEN DETERMINING THE SCOPE OF A MEANS-PLUS-FUNCTION LIMITATION] IS NOT EXHAUSTIVE AND REASONABLE INFERENCES BY THE FACT FINDER ARE APPROPRIATE.”); KING INSTRUMENTS CORP. V. OTARI CORP., 767 F.2D 853, 862-63, 226 USPQ 402, 408-09 (FED. CIR. 1985); PALUMBO V. DON-JOY CO., 762 F.2D 969, 975-76, 226 USPQ 5, 8 (FED. CIR. 1985) (“WHETHER THAT ACCUSED DEVICE IS A § 112 EQUIVALENT . . . IS A QUESTION OF FACT.”); D.M.I., INC. V. DEERE & CO., 755 F.2D 1570, 1575, 225 USPQ 236, 239 (FED. CIR. 1985). FOR PRAGMATIC REASONS, THE RESOLUTION OF THIS FACTUAL DETERMINATION IS OFTEN MADE AT THE SAME TIME THE FACT FINDER DETERMINES INFRINGEMENT (STEP TWO, DESCRIBED BELOW). THE SECOND STEP OF THE INFRINGEMENT ANALYSIS REQUIRES A FACTUAL COMPARISON OF THE CLAIMED INVENTION TO THE ACCUSED DEVICE, WHICH IS DONE BY THE FACT FINDER. SEE WINANS V. DENMEAD, 56 U.S. (15 HOW.) 330, 338 (1853). TO PROVE LITERAL INFRINGEMENT, THE PATENTEE MUST SHOW THAT THE ACCUSED DEVICE CONTAINS EVERY LIMITATION IN THE ASSERTED CLAIMS. SEE DOLLY, INC. V. SPALDING & EVENFLO COS., 16 F.3D 394, 397, 29 USPQ2D 1767, 1769 (FED. CIR. 1994). IF TRIED TO A JURY, IT IS THE JURY’S FACTUAL FINDINGS ON INFRINGEMENT THAT ARE REVIEWED BY THIS COURT FOR LACK OF SUBSTANTIAL EVIDENCE, SEE GENENTECH, 29 F.3D AT 1565, 31 USPQ2D AT 1168-69, AS PART OF THIS COURT’S REAPPLICATION OF THE STANDARD FOR JUDGMENT AS A MATTER OF LAW. A CLAIM OF INFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS MODIFIES THIS SECOND STEP BY REQUIRING THAT THE FACT FINDER DETERMINE WHETHER DIFFERENCES BETWEEN PARTICULAR ELEMENTS OF THE ACCUSED DEVICE AND THE ASSERTED CLAIMS ARE INSUBSTANTIAL. SEE WARNER-JENKINSON CO. V. HILTON DAVIS CHEM. CO., 117 S. CT. 1040, 1054 (MAR. 3, 1997). HOWEVER, BECAUSE THEY HAVE SEPARATE ORIGINS, PURPOSES, AND APPLICATIONS, DETERMINING EQUIVALENCE UNDER PARAGRAPH 112(6) REQUIRES AN ANALYSIS DIFFERENT FROM THAT USED TO DETERMINE EQUIVALENCE UNDER THE DOCTRINE OF EQUIVALENTS. SEE ALPEX, 102 F.3D AT 1222, 40 USPQ2D AT 1673 (“UNDER § 112, THE CONCERN IS WHETHER THE ACCUSED DEVICE, WHICH PERFORMS THE CLAIMED FUNCTION, HAS THE SAME OR AN EQUIVALENT STRUCTURE AS THE STRUCTURE DESCRIBED IN THE SPECIFICATION CORRESPONDING TO THE CLAIM’S MEANS. UNDER THE DOCTRINE OF EQUIVALENTS, ON THE OTHER HAND, THE QUESTION IS WHETHER THE ACCUSED DEVICE IS ONLY INSUBSTANTIALLY DIFFERENT THAN THE CLAIMED DEVICE.”) (INTERNAL CITATIONS OMITTED). AFTER THE JUDGE CONSTRUES THE MEANS-PLUS-FUNCTION LIMITATIONS IDENTIFYING STRUCTURES, MATERIALS, OR ACTS DESCRIBED IN THE PATENT’S SPECIFICATION, AND THEIR EQUIVALENTS AS DETERMINED BY THE FACT FINDER (STEP ONE, DESCRIBED ABOVE), THE JUDGE GIVES THE CONSTRUED CLAIMS TO THE FACT FINDER, IN THIS CASE A JURY, FOR A DETERMINATION OF INFRINGEMENT. SEE D.M.I., 755 F.2D AT 1575, 225 USPQ AT 239. FOR LITERAL INFRINGEMENT, THE FACT FINDER MUST DETERMINE WHETHER THE ACCUSED DEVICE PERFORMS AN IDENTICAL FUNCTION TO THE ONE RECITED IN THE MEANS-PLUS-FUNCTION CLAUSE. SEE PENNWALT CORP. V. DURAND-WHAYLAND, INC., 833 F.2D 931, 934, 4 USPQ2D 1737, 1739 (FED. CIR. 1987) (IF THE IDENTICAL FUNCTION IS NOT PERFORMED, LITERAL INFRINGEMENT IS NOT POSSIBLE). IF THE IDENTICAL FUNCTION IS PERFORMED, THE FACT FINDER MUST THEN DETERMINE WHETHER THE ACCUSED DEVICE UTILIZES THE SAME STRUCTURE OR MATERIALS AS DESCRIBED IN THE SPECIFICATION, OR THEIR EQUIVALENTS. JUST AS THE FACT FINDER’S INFRINGEMENT ANALYSIS DIFFERS BETWEEN EQUIVALENCE UNDER PARAGRAPH 112(6) AND THE DOCTRINE OF EQUIVALENTS, SO TOO DIFFERS THE ANALYTICAL EFFECT OF STATEMENTS MADE DURING THE PROSECUTION OF THE PATENT ON CONSTRUCTION OF THE CLAIMS. UNDER PARAGRAPH 112(6), A STATEMENT MADE DURING PROSECUTION MAY CONFINE THE RANGE OF EQUIVALENT STRUCTURES, MATERIALS, OR ACTS THAT ARE DIRECTLY CLAIMED BY THE PATENT. HOWEVER, IN THE CONTEXT OF A DOCTRINE OF EQUIVALENTS ANALYSIS, THE PATENTEE SEEKS PROTECTION BEYOND THAT CLAIMED BY THE PATENT DIRECTLY. AS SUCH, THE JUDGE’S CONSTRUCTION OF THE CLAIMS—WHICH INCLUDES THE INTERPRETATION OF CLAIM TERMS—MAY NOT BE SUFFICIENT TO REMOVE FROM THE JURY’S CONSIDERATION ALL SUBJECT MATTER THAT WAS DISCLAIMED DURING PROSECUTION. PROSECUTION HISTORY ESTOPPEL ADDRESSES THIS PROBLEM BY EXCLUDING EQUIVALENTS SURRENDERED DURING PROSECUTION. UNDER THIS DOCTRINE, STATEMENTS MADE TO OVERCOME REJECTIONS BASED, AS HERE, ON PRIOR ART ESTOP THE PATENTEE FROM EXTENDING ITS RIGHT TO EXCLUDE OTHERS FROM MAKING, USING, OR SELLING SUBJECT MATTER KNOWN TO BE INSUBSTANTIALLY DIFFERENT FROM, OR INTERCHANGEABLE WITH, CLAIMED ELEMENTS AT THE TIME OF THE ALLEGED INFRINGEMENT. WARNER-JENKINSON, 117 S. CT. AT 1053. ALTHOUGH BOTH FORMS OF EQUIVALENCE REQUIRE THE DISTRICT COURT TO EXAMINE THE PROSECUTION HISTORY AS PART OF ITS CONSTRUCTION OF THE CLAIMS, UNDER THE DOCTRINE OF EQUIVALENTS, THE JUDGE GIVES THE CLAIM, PROPERLY CONSTRUED TO EXCLUDE DISCLAIMED SUBJECT MATTER, TO THE JURY AND THEN, WHERE APPROPRIATE, ALSO INSTRUCTS THE JURY ON THE POSSIBLE RANGE OF EQUIVALENTS THAT IT MAY OR MAY NOT CONSIDER DUE TO PROSECUTION HISTORY ESTOPPEL. III. REVIEW AS DEPICTED IN FIGURE TWO OF THE PATENT, ANTE AT 3 [MAJ. OPN], THE ’837 PATENT DISCLOSES A DUAL-STAGE PUMP. IT CLAIMS A FIRST PUMPING MEANS THAT PUMPS FLUID THROUGH A FILTERING MEANS “TO” A “SECOND PUMPING MEANS.” IT ALSO CLAIMS A “MEANS TO ENABLE SAID SECOND PUMPING MEANS TO COLLECT AND/OR DISPENSE THE FLUID, OR BOTH,” AT RATES OR DURING PERIODS THAT ARE INDEPENDENT OF THE OPERATION OF THE FIRST PUMPING MEANS. AS A RESULT OF THIS STRUCTURE, THE PUMP DESCRIBED IN THE ’837 PATENT IS ABLE TO ACCUMULATE FLUID FOR LATER DISPENSE, DISPENSE FLUID IMMEDIATELY, OR PARTIALLY ACCUMULATE AND PARTIALLY DISPENSE FLUID IN PRECISE MEASUREMENTS AND AT PRECISE TIMES. THE PREFERRED EMBODIMENT DESCRIBES A SECOND PUMPING MEANS WHERE THE SECOND PUMP COLLECTS AND DISPENSES THE FLUID FROM ITS OWN INTERNAL RESERVOIR. LIKE THE PUMP DISCLOSED IN THE ’837 PATENT, CYBOR CORPORATION’S MODEL 5226 DUAL-STAGE PUMP ALSO ALLOWS USERS TO PUMP OR DISPENSE HIGHLY ACCURATE AMOUNTS OF LIQUID CHEMICALS IN INCREMENTS AS SMALL AS 0.1 MICROLITER. BOTH PUMPS ARE PRIMARILY USED FOR ACCURATELY DISPENSING CHEMICALS—SUCH AS PHOTORESIST AND POLIMIDE—ONTO SEMICONDUCTOR WAFERS DURING THEIR FABRICATION. OF RELEVANCE TO THIS APPEAL, IN CONSTRUING THE ’837 PATENT THE DISTRICT JUDGE INTERPRETED THE DISPUTED TERM “TO” AND SUBMITTED THE TERM TO THE JURY FOR A DETERMINATION OF INFRINGEMENT. THE JUDGE ALSO SUBMITTED THE TERMS “SECOND PUMPING MEANS,” “MEANS TO ENABLE SAID SECOND PUMPING MEANS,” AND “OR BOTH” TO THE JURY AS MEANS-PLUS-FUNCTION TERMS, ALONG WITH STRUCTURES IN THE ’837 PATENT’S SPECIFICATION, FOR A DETERMINATION OF INFRINGEMENT. THE JUDGE LEFT THE TASK OF CONSIDERING PROSECUTION HISTORY ESTOPPEL TO THE JURY.2 THE JURY FOUND THAT CYBOR’S MODEL 5226 PUMP LITERALLY INFRINGED CLAIMS 1-10, 13-15, AND 17-20, AND THAT IT INFRINGED CLAIMS 11, 12, AND 16 UNDER THE DOCTRINE OF EQUIVALENTS. IT IS UNCLEAR WHICH COMBINATION OF COMPONENTS IN CYBOR’S MODEL 5226 PUMP THE JURY FOUND TO INFRINGE CLAIMS 1-10, 13-15, AND 17-20. IT MAY HAVE INTERPRETED “SECOND PUMPING MEANS” IN SUCH A WAY THAT IT FOUND EITHER CYBOR’S SECOND PUMP OR THE COMBINATION OF ITS SECOND PUMP AND ITS EXTERNAL RESERVOIR TO BE EQUIVALENT STRUCTURES TO THOSE PROVIDED IN THE SPECIFICATION OF THE ’837 PATENT CORRESPONDING TO THE “SECOND PUMPING MEANS.” LIKEWISE, THE JURY MAY HAVE INTERPRETED “MEANS TO ENABLE SAID SECOND PUMPING MEANS” IN SUCH A WAY THAT IT FOUND EITHER CYBOR’S EXTERNAL RESERVOIR OR THE COMBINATION OF ITS EXTERNAL RESERVOIR AND ITS SECOND PUMP TO BE EQUIVALENT STRUCTURES TO THOSE PROVIDED IN THE SPECIFICATION OF THE ’837 PATENT CORRESPONDING TO THE “MEANS TO ENABLE SAID SECOND PUMPING MEANS.” IN TOTAL, THERE ARE FIVE POSSIBLE COMBINATIONS OF CLAIM TERM INTERPRETATIONS AND FINDINGS OF PARAGRAPH 112(6) EQUIVALENTS THAT WOULD HAVE LED THE JURY TO ITS INFRINGEMENT VERDICT. CYBOR RENEWED ITS EARLIER MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO RULE 50(B) AND FOR A NEW TRIAL PURSUANT TO RULE 59 OF THE FEDERAL RULES OF CIVIL PROCEDURE, ON THE BASIS THAT NO REASONABLE JUROR COULD FIND THAT ITS PUMP INFRINGES THE ’837 PATENT. THE COURT DENIED THE MOTION, FINDING “THAT THE JURY’S INFRINGEMENT VERDICT IS SUPPORTED BY THE EVIDENCE . . . THE JURY INSTRUCTIONS WERE PROPER AND THE VERDICT WAS NOT AGAINST THE CLEAR WEIGHT OF THE EVIDENCE OR CONTRARY TO THE INSTRUCTIONS.” CYBOR MOVED FOR RECONSIDERATION, ARGUING THAT THIS COURT’S THEN RECENTLY ISSUED MARKMAN, 52 F.3D 967, 34 USPQ2D 1321, REQUIRED THAT THE JUDGE, AND NOT THE JURY, INTERPRET ALL THE CLAIMS. THE DISTRICT COURT DENIED THE MOTION AND ENTERED FINAL JUDGMENT, FROM WHICH CYBOR APPEALED. ON APPEAL, CYBOR ARGUES THAT HAD THE DISTRICT COURT PROPERLY ANALYZED THE PROSECUTION HISTORY OF THE ’837 PATENT, IT WOULD HAVE EXCLUDED RESERVOIR STRUCTURES LIKE CYBOR’S FROM CONSIDERATION AS AN EQUIVALENT UNDER PARAGRAPH 112(6). CYBOR FURTHER ARGUES THAT THE JUDGE WOULD HAVE INSTRUCTED THE JURY NOT TO CONSIDER ITS RESERVOIR WHEN DETERMINING WHETHER CYBOR’S SECOND PUMP HAS THE SAME OR AN EQUIVALENT STRUCTURE AS THE STRUCTURE IN THE PORTIONS OF THE ’837 PATENT’S SPECIFICATION CORRESPONDING TO THE SECOND PUMPING MEANS. WITHOUT ITS RESERVOIR, CYBOR ARGUES THAT ITS SECOND PUMP CANNOT INFRINGE THE “SECOND PUMPING MEANS” LIMITATION, THE “OR BOTH” FUNCTIONAL LIMITATION, OR THE FILTER MEANS “TO” SECOND PUMPING MEANS LIMITATION. CYBOR ALSO ARGUES THAT THE DISTRICT JUDGE ERRED IN FAILING TO IDENTIFY THE CORRESPONDING STRUCTURES IN THE SPECIFICATION, AND IN PERMITTING THE JUDGE TO CONSIDER THE EFFECT OF STATEMENTS MADE DURING PROSECUTION OF THE ’837 PATENT. FAS RESPONDS THAT THE DISTRICT COURT PROPERLY CONSIDERED AND REJECTED CYBOR’S ARGUMENT ABOUT THE PROSECUTION HISTORY OF THE ’837 PATENT, THAT IT PROPERLY CONSTRUED THE NECESSARY CLAIMS, AND THAT IT PROPERLY SUBMITTED THEM ALONG WITH RELEVANT CORRESPONDING STRUCTURES—AS DESCRIBED IN THE SPECIFICATION—TO THE JURY FOR A DETERMINATION OF INFRINGEMENT. FAS FURTHER ARGUES THAT THE DISTRICT COURT WAS NOT OBLIGED, EITHER BEFORE OR AFTER MARKMAN, TO SUBMIT COMPLETE CLAIM CONSTRUCTIONS TO THE JURY SO LONG AS THE JUDGE’S ULTIMATE CLAIM CONSTRUCTION IS SUPPORTED BY THE JURY’S FACTUAL FINDINGS, PRESUMED OR EXPRESSED, REGARDING DISPUTED CLAIM TERMS, AND SO LONG AS THE JUDGE LATER EVALUATES AND SUSTAINS THE JURY’S FACTUAL FINDINGS. CLAIM 1 OF THE ’837 PATENT CONTAINS THREE DISPUTED LIMITATIONS AND IS REPRESENTATIVE OF HOW THESE LIMITATIONS ARE USED, WHERE THEY APPEAR THROUGHOUT THE 20 ASSERTED CLAIMS: IN A DEVICE FOR FILTERING AND DISPENSING FLUID IN A PRECISELY CONTROLLED MANNER, THE COMBINATION OF: FIRST PUMPING MEANS; SECOND PUMPING MEANS IN FLUID COMMUNICATION WITH SAID FIRST PUMPING MEANS; AND FILTERING MEANS BETWEEN SAID FIRST AND SECOND PUMPING MEANS, WHEREBY SAID FIRST PUMPING MEANS PUMPS THE FLUID THROUGH SAID FILTERING MEANS TO SAID SECOND PUMPING MEANS; IN WHICH EACH OF SAID FIRST AND SECOND PUMPING MEANS INCLUDES SURFACES THAT CONTACT THE FLUID, SAID SURFACES BEING OF MATERIALS THAT ARE NON-CONTAMINATING TO INDUSTRIAL FLUIDS WHICH ARE VISCOUS AND/OR HIGH PURITY AND/OR SENSITIVE TO MOLECULAR SHEAR; AND COMPRISING MEANS TO ENABLE SAID SECOND PUMPING MEANS TO COLLECT AND/OR DISPENSE THE FLUID, OR BOTH, AT RATE OR DURING PERIODS OF OPERATION, OR BOTH WHICH ARE INDEPENDENT OF RATES OR PERIODS OF OPERATION, OR BOTH, RESPECTIVELY, OF SAID FIRST PUMPING MEANS. ’837 PATENT, COL. 9, LINES 45-61 (EMPHASIS AND FORMATTING ADDED). THE SPECIFICATION OF THE ’837 PATENT FURTHER DESCRIBES THE “SECOND PUMPING MEANS” AS HAVING TUBING THAT CONNECTS THE PUMP TO THE SECOND INCREMENTAL PUMP ADVANCEMENT MEANS, COL. 5, LINES 49-52, A DIAPHRAGM INSIDE THE SECOND PUMP, COL. 6, LINES 2-3, AND A SEPARATE INLET PASSAGE AND OUTLET PASSAGE, COL. 7, LINES 10-20. DURING PROSECUTION, THE INVENTORS FURTHER LIMITED THE SCOPE BY MAKING THE FOLLOWING STATEMENTS TO OVERCOME A PRIOR ART REJECTION THAT THE CLAIMED INVENTION WAS UNPATENTABLE OVER STORKEBAUM ET AL., U.S. PATENT NO. 4,749,476. ADDITIONALLY, STORKEBAUM SPECIFICALLY PROVIDES A SEPARATE CONTAINER 12 FOR COLLECTING THE PERMEATE. OBVIOUSLY, STORKEBAUM DOES NOT TEACH THE COLLECTION OF FLUID IN A SECOND PUMPING MEANS. . . . STORKEBAUM DISCLOSES A PERMEATE COLLECTING CONTAINER 12 THAT IS SEPARATE FROM THE CONVEYING PUMP 13. NOTHING IN STORKEBAUM DISCLOSES OR MAKES OBVIOUS THE CLAIMED INVENTION, NOR THE PRECISE AND FLEXIBLE CONTROL PROVIDED BY THE SECOND PUMP MEANS OF CLAIM 1. GIVEN THE NATURE AND FUNCTION OF THE STORKEBAUM CONTAINER, THESE STATEMENTS WERE MADE TO DISTINGUISH THE INVENTION OVER THE PRIOR ART. THEY CONFINE THE POSSIBLE INTERPRETATION OF TERMS IN THE CLAIMS UNDER PARAGRAPH 112(6) AND THEY MAY PREVENT FAS’S DESIRED USE OF THE DOCTRINE OF EQUIVALENTS. SEE WARNER-JENKINSON, 117 S. CT. AT 1051 N.7. HOWEVER, IN THIS CASE THE LIMITATION OF POSSIBLE EQUIVALENTS EXTENDS ONLY SO FAR AS WAS NECESSARY TO DISTINGUISH ASPECTS OF THE INVENTION’S “SECOND PUMPING MEANS” FROM STORKEBAUM’S EXTERNAL CONTAINER. THE STATEMENTS DO NOT REQUIRE THAT THE DISTRICT JUDGE PROVIDE THE JURY WITH MORE SPECIFIC INTERPRETATIONS OF CLAIM TERMS BECAUSE THE INVENTORS DISCLAIMED THE USE OF A SEPARATE, PHYSICALLY UNATTACHED RESERVOIR THAT CANNOT ACHIEVE DIFFERENTIAL PUMPING RATES BETWEEN THE TWO PUMPS BY ACCUMULATING FLUID IN A RESERVOIR—THE FUNCTION PERFORMED BY THE ’837 PATENT’S “MEANS TO ENABLE SAID SECOND PUMPING MEANS.” STORKEBAUM’S SEPARATE CONTAINER COLLECTS PERMEATE AND VENTS THE FLUID; IT IS DESIGNED TO FEED A CONVEYING PUMP THAT IS PART OF A BIG CIRCULATION LOOP, NOT A FLUID DISPENSING DEVICE. BECAUSE THE INVENTORS NEVER DISCLAIMED AN EXTERNAL RESERVOIR THAT ACCUMULATES FLUID TO PERMIT DIFFERENT PUMPING RATES AND BECAUSE EQUIVALENCE UNDER PARAGRAPH 112(6) IS A QUESTION OF FACT, THE DISTRICT COURT PROPERLY PERMITTED THE JURY TO CONSIDER THE STRUCTURE OF CYBOR’S EXTERNAL RESERVOIR AS A POSSIBLE EQUIVALENT, UNDER PARAGRAPH 112(6), TO STRUCTURES IN THE ’837 PATENT’S SPECIFICATION THAT DEFINE THE “SECOND PUMPING MEANS” AND THE “MEANS TO ENABLE THE SECOND PUMPING MEANS.” IT WAS ALSO PROPER FOR THE DISTRICT COURT TO PERMIT THE JURY TO CONSIDER CYBOR’S RESERVOIR IN MEASURING THE SUBSTANTIALITY OF DIFFERENCES BETWEEN ITS DEVICE AND THE INVENTION CLAIMED BY THE ’837 PATENT, UNDER THE DOCTRINE OF EQUIVALENTS. A. “SECOND PUMPING MEANS” “MEANS TO ENABLE SAID SECOND PUMPING MEANS” AS TO THESE TWO DISPUTED LIMITATIONS, EACH OF THE INDEPENDENT CLAIMS, EXCEPT FOR CLAIM 16, USES THE TERM “SECOND PUMPING MEANS,” WHICH THE COURT INTERPRETED IN MEANS-PLUS-FUNCTION LANGUAGE AS: “A STRUCTURE IDENTICAL TO THE STRUCTURE DISCLOSED IN THE SPECIFICATION OF THE PATENT OR THE EQUIVALENT OF THAT STRUCTURE WHICH PERFORMS THE FUNCTION OF A FLUID ACCUMULATOR/DISPENSE PUMP.” THE DISTRICT COURT ALSO INTERPRETED THE TERM “MEANS TO ENABLE SAID SECOND PUMPING MEANS,” WHICH APPEARS IN EACH OF THE INDEPENDENT CLAIMS EXCEPT CLAIMS 10, 16, AND 17, IN MEANS-PLUS-FUNCTION LANGUAGE, AS: “A STRUCTURE IDENTICAL TO THE STRUCTURE DISCLOSED IN THE SPECIFICATION OF THE PATENT, OR THE EQUIVALENT THEREOF, WHICH ALLOWS THE SECOND PUMPING MEANS TO [ACCUMULATE, DISPENSE, AND PARTIALLY COLLECT AND DISPENSE FLUID AT RATES AND DURING PERIODS INDEPENDENT OF THE FIRST PUMPING MEANS].” CYBOR ARGUES THAT THESE MEANS-PLUS-FUNCTION ELEMENTS SHOULD BE LIMITED TO THE EXACT STRUCTURES DISCLOSED IN THE CLAIMS AND THE SPECIFICATION OF THE ’837 PATENT. HOWEVER, PARAGRAPH 112(6) PERMITS THE DISCLOSURE OF SPECIFIC STRUCTURES IN THE SPECIFICATION, WITHOUT LIMITING PROTECTION TO THE DISCLOSED STRUCTURES. SEE 35 U.S.C. 112(6) (“[S]UCH CLAIMS SHALL BE CONSTRUED TO COVER THE CORRESPONDING STRUCTURE, MATERIALS, OR ACTS DESCRIBED IN THE SPECIFICATION AND EQUIVALENTS THERETO.”); D.M.I., 755 F.2D AT 1574, 225 USPQ AT 238. CYBOR IS CORRECT THAT THE RESERVOIR AND THE SECOND PUMP IN ITS DUAL-STAGE PUMP ARE NOT IDENTICAL TO THE STRUCTURE DISCLOSED IN THE SPECIFICATION OF THE ’837 PATENT; THEY CONTAIN A VALVE UNLIKE THE DISCLOSED STRUCTURE, AND IF UNCOUPLED FROM THE ATTACHED RESERVOIR, THE PUMP DOES NOT PERMIT THE PARTIAL ACCUMULATION AND PARTIAL DISPENSING OF FLUID AS CONTEMPLATED BY THE TERM “FLOW THROUGH” IN THE ’837 PATENT. HOWEVER, AS EXPLAINED ABOVE, THE PROSECUTION HISTORY DOES NOT REQUIRE THE DISTRICT COURT TO UNCOUPLE THE VALVE OR SEPARATE THE RESERVOIR FROM THE SECOND PUMP BEFORE SUBMITTING THE TERMS “SECOND PUMPING MEANS” AND “MEANS TO ENABLE SAID SECOND PUMPING MEANS” TO THE JURY. THE ’837 PATENT’S PREFERRED EMBODIMENT SHOWS THE RESERVOIR INSIDE THE SECOND PUMP, BUT NOTHING REQUIRES SUCH A RESTRICTION, AND LIMITATIONS IN THE SPECIFICATION SHOULD NOT BE READ INTO THE CLAIMS. SEE CONSTANT V. ADVANCED MICRO-DEVICES, INC., 848 F.2D 1560, 1570-71, 7 USPQ2D 1057, 1064 (FED. CIR. 1988). FINALLY, SUCH A RESTRICTION WOULD GO AGAINST THE CLEAR WEIGHT OF TESTIMONY SUBMITTED BY FAS’S EXPERT WITNESSES, CLARK, WHO WAS QUALIFIED AS ONE SKILLED IN THE ART OF FLUID DYNAMICS, AND SNODGRASS AND GIBSON. “AS IN ALL CASES INVOLVING ASSERTIONS OF EQUIVALENCY, WHEREIN THE PATENTEE SEEKS TO APPLY ITS CLAIMS TO STRUCTURES NOT DISCLOSED BY THE PATENTEE, THE COURT IS REQUIRED TO EXERCISE JUDGMENT.” TEXAS INSTRUMENTS, INC. V. UNITED STATES INT’L. TRADE COMM’N, 846 F.2D 1369, 1371, 6 USPQ2D 1886, 1889 (FED. CIR. 1988). HERE, THE DISTRICT COURT EXERCISED ITS JUDGMENT, MADE A PARTIAL, THOUGH LEGALLY SUFFICIENT INTERPRETATION OF THESE LIMITATIONS, AND PRESENTED THEM TO THE JURY FOR RESOLUTION OF FACTUAL DISPUTES ON THE WAY TO DETERMINING EQUIVALENTS UNDER PARAGRAPH 112(6). BASED ON THESE INTERPRETATIONS AND THE JURY’S VERDICT, WE PRESUME3 THAT THE JURY FOUND THAT THE COMBINATION OF ONE OF CYBOR’S MODEL 5016 PUMPS WITH THE EXTERNAL RESERVOIR IT USES IN ITS MODEL 5226 PUMP CREATED A STRUCTURAL EQUIVALENT TO THE “SECOND PUMPIING MEANS” OR THE “MEANS TO ENABLE SAID SECOND PUMPING MEANS” CLAIMED IN THE ’837 PATENT AND DESCRIBED BY THE SPECIFICATION UNDER PARAGRAPH 112(6). BECAUSE WE HAVE NOT BEEN SHOWN THAT THE JURY LACKED SUBSTANTIAL EVIDENCE TO SUPPORT THIS FINDING OF EQUIVALENTS OR INFRINGEMENT, WE MUST AFFIRM. HOWEVER, IF THE COURT IS CORRECT THAT CLAIM CONSTRUCTION IS PURELY AND SOLELY A QUESTION OF LAW TO BE REVIEWED DE NOVO ON APPEAL, IT COULD NOT AFFIRM THE JUDGMENT OF INFRINGEMENT. INFRINGEMENT WAS DETERMINED IN THIS CASE BY A JURY AT THE SAME TIME THAT IT WAS ASKED TO CONSTRUE THESE CLAIMS BY RESOLVING FACTUAL DISPUTES ABOUT THEIR MEANING AND TO DETERMINE WHETHER THE SCOPE OF THESE CLAIMS SHOULD BE LIMITED BY ARGUMENTS MADE DURING PROSECUTION OF THE PATENT. ORDINARILY, A JURY’S VERDICT OF INFRINGEMENT PERMITS US TO PRESUME THE EXISTENCE OF FACTUAL FINDINGS NECESSARY TO THAT VERDICT. BUT WE ARE IN NO WAY ENTITLED TO PRESUME FACTUAL FINDINGS OR EVEN TO RELY ON THE VERDICT OF INFRINGEMENT WHERE NEITHER THE JURY, NOR THE JUDGE ON A MOTION FOR JUDGMENT AS A MATTER OF LAW, ARTICULATED A CONSTRUCTION OF THE CLAIMS UPON WHICH THE FINDINGS ARE PREMISED. AS EXPLAINED ABOVE, THERE ARE FIVE POSSIBLE COMBINATIONS OF CLAIM TERM INTERPRETATIONS AND FINDINGS OF PARAGRAPH 112(6) EQUIVALENTS THAT COULD HAVE LED THE JURY TO ITS INFRINGEMENT VERDICT. IN LIGHT OF THE POSSIBILITIES, IT IS DIFFICULT TO IMAGINE HOW THE COURT CAN AFFIRM THE JURY’S FINDING OF INFRINGEMENT BASED UPON ITS OWN DE NOVO CLAIM CONSTRUCTION, WHICH MERELY PRESUMES A CLAIM CONSTRUCTION BY THE DISTRICT COURT AND THAT ADMITS OF NO DEFERENCE TO THE FINDINGS OF FACT. THE EFFECT OF ALLOWING SUCH A COMBINATION OF PRESUMPTIONS IN THIS CASE HAS BEEN TO DENY CYBOR MEANINGFUL REVIEW OF ANYTHING MORE THAN THE DISTRICT JUDGE’S DECISION NOT TO APPLY PROSECUTION HISTORY ESTOPPEL, SINCE IT WAS THE ONLY LEGAL DETERMINATION THAT CAN BE LOCATED OUTSIDE OF THOSE PRESUMPTIONS. NOT SURPRISINGLY, THIS IS THE DECISION CYBOR CONTESTS MOST STRENUOUSLY ON APPEAL. THE EFFECT HAS ALSO BEEN TO ALLOW THIS COURT TO PRESUME THAT IT MADE THE SAME CLAIM CONSTRUCTION AS THE JURY, WITHOUT SO MUCH AS ARTICULATING ITS OWN CONSTRUCTION OF THESE TWO CLAIM TERMS, AND THEN TO PRESUME THAT THE JURY’S INFRINGEMENT FINDING IS STILL VALID. PENULTIMATELY, CYBOR IS LEFT WITH LITTLE MORE THAN THE ABILITY TO MAKE PRESUMPTIONS AS TO OUR OWN CLAIM INTERPRETATIONS IN ANY MOTION IT MAY FILE FOR RECONSIDERATION. WORSE STILL IS THE MESSAGE THE COURT IS SENDING TO DISTRICT COURTS: WE WILL AFFIRM A FINDING OF INFRINGEMENT AS LONG AS THE DISTRICT COURT AVOIDS ARTICULATING ITS CONSTRUCTION OF THE CLAIMS—WHICH COINCIDENTALLY LEAVES US FREE TO ARRIVE AT OUR OWN CONSTRUCTIONS—AND AS LONG AS WE CAN PRESUME THAT THE JURY USED OUR CONSTRUCTIONS TO ARRIVE AT THAT FINDING OF INFRINGEMENT. B. “TO” THE SECOND OF THESE THREE DISPUTED CLAIM LIMITATIONS, “PUMPS FLUID THROUGH SAID FILTERING MEANS TO SAID SECOND PUMPING MEANS,” IS THE ONLY ONE THAT THE DISTRICT COURT DID NOT ANALYZE AS PART OF A MEANS- PLUS-FUNCTION LIMITATION. CYBOR ARGUED THAT THE FLUID HAS TO BE PUMPED DIRECTLY TO THE SECOND PUMP. FAS MAINTAINS THAT IT IS ENOUGH THAT THE FLUID MERELY REACHES THE SECOND PUMP. THE DISTRICT COURT INTERPRETED THE TERM “TO” AS PUMPING “TOWARDS AND WITH A DESTINATION OF” THE SECOND PUMP AND LEFT THE DETERMINATION OF INFRINGEMENT TO THE JURY. ABSENT ITS PROSECUTION HISTORY ESTOPPEL ARGUMENT, THERE REMAINS LITTLE TO CYBOR’S INTERPRETATION OF THIS CLAIM LIMITATION. FAS PRESENTED SUFFICIENT EXPERT TESTIMONY FROM GIBSON AND CLARK THAT THE FLUID MUST MERELY BE PUMPED “ULTIMATELY” TO THE “SECOND PUMPING MEANS.” THIS EVIDENCE IS CONSISTENT WITH THE EXPERT TESTIMONY OF SNODGRASS AND GIBSON THAT THE “TO” LIMITATION REQUIRES ONLY A DESIGNED OR DEDICATED PATHWAY BETWEEN THE TWO PUMPING MEANS, WHICH CYBOR’S DEVICE POSSESSES. BECAUSE ALL EXPERTS WERE CONSISTENT IN THEIR TESTIMONY ABOUT THE MEANING OF TERMS TO ONE SKILLED IN THE ART, THERE WAS NO OCCASION HERE FOR THE COURT TO RESOLVE A FACTUAL DISPUTE OVER THE MEANING OF A TERM EN ROUTE TO THEIR INTERPRETATION. MOREOVER, BECAUSE THE INTERPRETATION OF THIS CLAIM LIMITATION DESCRIBES CYBOR’S MODEL 5226 DUAL-STAGE PUMP, REGARDLESS OF WHETHER OR NOT THE RESERVOIR IS PART OF THE SECOND PUMPING MEANS, NO REASONABLE JUROR COULD USE THIS AS A BASIS FOR FINDING NONINFRINGEMENT, AND I AGREE WE CAN AFFIRM THIS ASPECT OF THE DISTRICT COURT’S JUDGMENT. C. “OR BOTH” THE THIRD DISPUTED LIMITATION, “OR BOTH” IS CONTAINED WITHIN MEANS-PLUS-FUNCTION LANGUAGE, IT DESCRIBES A FUNCTION OF THE “MEANS TO ENABLE SECOND PUMPING MEANS,” AND IT MUST BE A FUNCTION OF CYBOR’S DEVICE IF THE FACT FINDER IS TO CONSIDER EQUIVALENCE UNDER PARAGRAPH 112(6). CYBOR ARGUES SOLELY THAT THE INVENTOR OF THE ’837 PATENT DISCLAIMED EXTERNAL RESERVOIRS SUCH AS ITS OWN, BY DISTINGUISHING STORKEBAUM. THUS THE JURY SHOULD NOT CONSIDER ITS EXTERNAL RESERVOIR WHEN IT DETERMINES WHETHER THE MODEL 5226 DUAL-STAGE PUMP CONTAINS STRUCTURAL EQUIVALENTS TO EACH OF THE RELEVANT LIMITATIONS DISCLOSED IN THE ‘837 PATENT. GIVEN THE PROSECUTION HISTORY ANALYSIS AND THE JURY’S PRESUMED FINDING THAT CYBOR’S RESERVOIR AND SECOND PUMP CONTAIN EQUIVALENTS OF ALL THE LIMITATIONS TO THE “MEANS TO ENABLE SAID SECOND PUMPING MEANS,” CYBOR’S ARGUMENT CANNOT STAND. THE JURY HAD SUBSTANTIAL EVIDENCE UPON WHICH TO FIND THAT CYBOR’S RESERVOIR AND SECOND PUMP TOGETHER CAN COLLECT, DISPENSE, AND BOTH COLLECT AND DISPENSE FLUID, SO ITS FINDING OF INFRINGEMENT IS ALSO SUFFICIENT. IV. JUDGMENT AS A MATTER OF LAW FINALLY, CYBOR ARGUES THAT MARKMAN, 52 F.3D 967, 34 USPQ2D 1321, REQUIRES THAT THE JUDGE DETERMINE THE MEANING OF THE CLAIM BEFORE SUBMITTING IT TO THE JURY. HOWEVER, THAT OPINION SAID THAT THE JUDGE MUST DETERMINE THE MEANING OF A CLAIM, BUT THAT THE MEANING NEED NOT BE ESTABLISHED BEFORE THE CLAIMS ARE SUBMITTED TO THE JURY. MARKMAN, 52 F.3D AT 981, 34 USPQ2D AT 1331 (PRONOUNCING THE MEANING OF A CLAIM “ORDINARILY CAN BE ACCOMPLISHED BY THE COURT IN FRAMING ITS CHARGE TO THE JURY, BUT MAY ALSO BE DONE IN THE CONTEXT OF DISPOSITIVE MOTIONS SUCH AS THOSE SEEKING JUDGMENT AS A MATTER OF LAW.”) THE RISK OF WAITING, OF COURSE, IS THAT THE JURY’S DELIBERATIVE EFFORTS ON INFRINGEMENT MAY BE RENDERED USELESS IF THE INSTRUCTION WAS IMPROPER AND THE AFFECTED FACTUAL DISPUTE WAS MATERIAL TO THE VERDICT. HERE, THIS HAPPENS ONLY UNDER THE COURT’S STANDARD OF REVIEW. MOREOVER, GIVEN THE NATURE AND INTERRELATEDNESS OF THESE DISPUTED LIMITATIONS AND THE UNDERLYING FACTUAL QUESTIONS—WHETHER THE COMBINATION OF CYBOR’S SECOND PUMP AND ITS RESERVOIR IS A PARAGRAPH 112(6) EQUIVALENT TO THE “SECOND PUMPING MEANS” OR THE “MEANS TO ENABLE SAID SECOND PUMPING MEANS”—IT IS DIFFICULT TO SEE HOW THE DISTRICT COURT COULD HAVE BETTER INSTRUCTED THE JURY, ABSENT THE USE OF DETAILED AND ALTERNATIVE SPECIAL VERDICTS. THEREFORE, I SEE NO REVERSIBLE ERROR IN THE DISTRICT COURT’S LIMITED CLAIM INTERPRETATIONS OR ITS DENIAL OF CYBOR’S MOTION FOR JUDGMENT AS A MATTER OF LAW. UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 96-1286,-1287 CYBOR CORPORATION, PLAINTIFF-APPELLANT, V. FAS TECHNOLOGIES, INC., AND FASTAR LTD., DEFENDANTS/CROSS-APPELLANTS. RADER, CIRCUIT JUDGE, DISSENTING FROM THE PRONOUNCEMENTS ON CLAIM INTERPRETATION IN THE EN BANC OPINION, CONCURRING IN THE JUDGMENT, AND JOINING PART IV OF THE EN BANC OPINION. THE EN BANC COURT CHOOSES THIS CASE, RESOLVABLE UNDER THE PROSECUTION HISTORY ESTOPPEL DOCTRINE, TO STATE THAT IT ACCORDS NO DEFERENCE TO THE DISTRICT COURT’S CENTRAL ROLE IN PATENT LITIGATION, NAMELY CLAIM INTERPRETATION. YET, BASED ON THIS COURT’S UNANIMOUS CONCURRENCE IN THE JUDGMENT, THE STANDARD OF REVIEW DOES NOT AFFECT THE OUTCOME IN THIS CASE. ACCORDINGLY, THIS CASE OBSCURES WHAT REALLY IS AT STAKE WHEN CLAIM CONSTRUCTION IS SUBJECT TO DE NOVO REVIEW AND APPELLATE REVISION. IN MARKMAN I, THIS COURT EN BANC DECLARED THAT CLAIM INTERPRETATION RESIDES SOLELY WITH THE JUDGE. THE SUPREME COURT AGREED. SEE MARKMAN V. WESTVIEW INSTRUMENTS, INC., 116 S. CT. 1384, 1387 (1996) (MARKMAN II). BY REMOVING LAY JURIES FROM COMPLEX TECHNOLOGICAL DECISIONS, THESE DECISIONS PROMISED TO IMPROVE THE PREDICTABILITY AND UNIFORMITY OF PATENT LAW. SEE MARKMAN II, 116 S. CT. AT 1396. TO EVADE THE STRICTURES OF THE SEVENTH AMENDMENT, MARKMAN I NECESSARILY REASONED THAT CLAIM CONSTRUCTION IS PURELY A MATTER OF LAW. AS A PURE QUESTION OF LAW, CLAIM CONSTRUCTION BECAME SUBJECT TO PLENARY APPELLATE REVIEW. BECAUSE JURY INVOLVEMENT REMAINED THE FOCUS OF MARKMAN I, THE SUPREME COURT DID NOT ADDRESS APPELLATE REVIEW OF CLAIM CONSTRUCTION. INSTEAD THE SUPREME COURT REPEATEDLY INTIMATED THAT CLAIM CONSTRUCTION WAS NOT A PURELY LEGAL MATTER. SEE, E.G., MARKMAN II, 116 S. CT. AT 1390 (CALLING THE CONSTRUCTION OF A TERM OF ART FOLLOWING RECEIPT OF EVIDENCE A “MONGREL PRACTICE”); ID. AT 1395 (SUGGESTING THAT CLAIM INTERPRETATION “‘FALLS SOMEWHERE BETWEEN A PRISTINE LEGAL STANDARD AND A SINGLE HISTORICAL FACT’” (QUOTING MILLER V. FENTON, 474 U.S. 104, 114 (1985))); ID. AT 1396 (“NOTWITHSTANDING [CLAIM CONSTRUCTION’S] EVIDENTIARY UNDERPINNINGS”). NONETHELESS, IN THE TIME SINCE MARKMAN II, THIS COURT HAS REPEATEDLY EXTOLLED ITS OWN AUTHORITY TO “REVIEW THE ISSUE OF CLAIM INTERPRETATION INDEPENDENTLY WITHOUT DEFERENCE TO THE TRIAL JUDGE.” EXXON CHEM. PATENTS, INC. V. LUBRIZOL CORP., 64 F.3D 1553, 1556, 35 USPQ2D 1801, 1803 (FED. CIR. 1995) (LUBRIZOL) (EMPHASIS ADDED); SEE ALSO HOECHST CELANESE CORP. V. BP CHEM. LTD., 78 F.3D 1575, 1578, 38 USPQ2D 1126, 1128 (FED. CIR.), CERT. DENIED, 117 S. CT. 275 (1996). INDEED, AT ONE POINT, THIS COURT NOTED THAT ITS LAW REQUIRES “INDEPENDENT DETERMINATION OF THE CONSTRUCTION OF THE CLAIMS, AS A MATTER OF LAW, UNENCUMBERED BY THE TRIAL PROCESS.” FESTO CORP. V. SHOKETSU KINZOKU KOGYO KABUSHIKI CO., 72 F.3D 857, 863, 37 USPQ2D 1161, 1165 (FED. CIR. 1995), VACATED AND REMANDED ON OTHER GROUNDS, 117 S. CT. 1240 (1997). UNENCUMBERED BY THE TRIAL PROCESS? FAR FROM AN ENCUMBRANCE, THE SUPREME COURT SUGGESTS THAT THE TRIAL SHOULD BE THE “MAIN EVENT.” WAINWRIGHT V. SYKES, 433 U.S. 72, 90 (1977). BECAUSE JURY ISSUES DOMINATED MARKMAN I, THIS COURT HAS YET EVEN TO RECEIVE BRIEFING AND ORAL ARGUMENT ON THE PROPER STANDARD OF REVIEW FOR A TRIAL COURT’S CLAIM CONSTRUCTION. NONETHELESS THIS COURT RELIES ON ITS EARLIER EN BANC DECISION, MARKMAN I, 52 F.3D AT 979, TO MAKE CLAIM CONSTRUCTION PURELY A QUESTION OF LAW, SUBJECT TO INDEPENDENT APPELLATE REVIEW WITHOUT DEFERENCE TO OR ENCUMBRANCE BY THE TRIAL PROCESS. TO MY EYES, THIS REJECTION OF THE TRIAL PROCESS AS THE “MAIN EVENT” WILL UNDERMINE, IF NOT DESTROY, THE VALUES OF CERTAINTY AND PREDICTABILITY SOUGHT BY MARKMAN I. I. THE QUESTION OF THE PROPER STANDARD OF REVIEW SEEMS AN ESOTERIC LEGAL TOPIC OF INTEREST ONLY TO LAW PROFESSORS AND APPELLATE JUDGES. IN MOST CASES, HOWEVER, THE REVIEW STANDARD INFLUENCES GREATLY BOTH THE TRIAL JUDGES WHO PRESIDE OVER THE TRIAL PROCESS AND PATENT PRACTITIONERS WHO MUST ADVISE CLIENTS TO ACCOMMODATE THEIR BUSINESS PLANS TO AN UNCERTAIN LEGAL REGIME. FROM THE VANTAGE POINT OF TRIAL JUDGES, MARKMAN I DICTATES MANY DEVIATIONS FROM THE NORMAL PROCEDURAL COURSE FOR LITIGATION. PERHAPS THE CENTRAL DEVIATION, HOWEVER, AFFECTS THE TRIAL COURT’S DISCRETION TO USE EXPERT TESTIMONY. WHEN CONFRONTED WITH SOPHISTICATED TECHNOLOGY, DISTRICT COURT JUDGES OFTEN SEEK TESTIMONY FROM EXPERTS TO HELP THEM UNDERSTAND AND INTERPRET THE CLAIM. UNDER THE GUISE OF SETTING STANDARDS FOR CLAIM CONSTRUCTION, THIS COURT INSTRUCTS EXPERIENCED TRIAL JUDGES THAT THEY MAY USE EXPERTS TO UNDERSTAND, BUT NOT TO INTERPRET, THE CLAIM TERMS. AS A MATTER OF LOGIC, THIS INSTRUCTION IS DIFFICULT TO GRASP. WHAT IS THE DISTINCTION BETWEEN A TRIAL JUDGE’S UNDERSTANDING OF THE CLAIMS AND A TRIAL JUDGE’S INTERPRETATION OF THE CLAIMS TO THE JURY? DON’T JUDGES INSTRUCT THE JURY IN ACCORDANCE WITH THEIR UNDERSTANDING OF THE CLAIMS? IN PRACTICE, HOW DOES THIS COURT’S LOFTY APPELLATE LOGIC WORK? AS THIS COURT ACKNOWLEDGES, A TRIAL COURT MUST OFTEN RESORT TO EXPERTS TO LEARN COMPLEX NEW TECHNOLOGIES. SEE, E.G., MARKMAN I, 52 F.3D AT 986. WHAT HAPPENS WHEN THAT LEARNING INFLUENCES A TRIAL JUDGE’S INTERPRETATION OF THE CLAIM TERMS? ARE TRIAL JUDGES SUPPOSED TO DISGUISE THE REAL REASONS FOR THEIR INTERPRETATION? HOW WILL THIS PERVERSE INCENTIVE TO “HIDE THE BALL” IMPROVE APPELLATE REVIEW? AS A MATTER OF LEGAL ANALYSIS, THE EN BANC COURT’S DIRECTION TO TRIAL JUDGES IS EQUALLY HARD TO JUSTIFY. THE OBJECTIVE OF CLAIM INTERPRETATION IS TO DISCERN THE MEANING OF THE CLAIM TERMS TO ONE OF ORDINARY SKILL IN THE ART AT THE TIME OF INVENTION. SEE MULTIFORM DESICCANTS, INC. V. MEDZAM, LTD., 133 F.3D 1473, 1477, 45 USPQ2D 1429, 1432 (FED. CIR. 1998) (“IT IS THE PERSON OF ORDINARY SKILL IN THE FIELD OF THE INVENTION THROUGH WHOSE EYES THE CLAIMS ARE CONSTRUED.”). WHAT THEN DEFEATS THE RELEVANCE OF THE TESTIMONY OF ONE OF SKILL IN THE ART AT THE TIME OF INVENTION? OF COURSE THIS RELEVANT TESTIMONY MUST NOT CONFLICT WITH OR ATTEMPT TO TRUMP CONTEMPORANEOUS INTRINSIC EVIDENCE FROM THE PATENT DOCUMENT ITSELF, SEE VITRONICS CORP. V. CONCEPTRONIC, INC., 90 F.3D 1576, 1582-83, 39 USPQ2D 1573, 1576-77 (FED. CIR. 1996), BUT BOTH TRIAL AND APPELLATE JUDGES ARE POISED TO HALT THAT ABUSE. MOREOVER, BY ASSIGNING CLAIM INTERPRETATION TO THE JUDGE, MARKMAN II HAS ALREADY CORRECTED THE MAJOR SOURCE OF THE PROBLEM WITH EXPERTS, NAMELY THEIR ABILITY TO INFLUENCE LAY JURORS WITH THE STRENGTH OF THEIR RESUMES RATHER THAN THE STRENGTH OF THEIR REASONING. IN ANY EVENT, IT SEEMS A CONTRADICTION TO BAR THOSE OF SKILL IN THE ART AT THE TIME OF INVENTION FROM A SEARCH FOR THE MEANING OF TERMS TO ONE OF SKILL IN THE ART AT THE TIME OF THE INVENTION. IN EFFECT, THE EN BANC OPINION HAS SUB SILENTIO REDEFINED THE CLAIM CONSTRUCTION INQUIRY AS “HOW A LAWYER OR JUDGE WOULD INTERPRET THE TERM.” DISTRICT COURTS HAVE ALREADY EXPRESSED THEIR FRUSTRATION WITH THE STRICTURES OF MARKMAN I: WHEN TWO EXPERTS TESTIFY DIFFERENTLY AS TO THE MEANING OF A TECHNICAL TERM, AND THE COURT EMBRACES THE VIEW OF ONE, THE OTHER, OR NEITHER WHILE CONSTRUING A PATENT CLAIM AS A MATTER OF LAW, THE COURT HAS ENGAGED IN WEIGHING EVIDENCE AND MAKING CREDIBILITY DETERMINATIONS . . . . BUT WHEN THE FEDERAL CIRCUIT COURT OF APPEALS STATES THAT THE TRIAL COURT DOES NOT DO SOMETHING THAT THE TRIAL COURT DOES AND MUST DO TO PERFORM THE JUDICIAL FUNCTION, THE COURT KNOWINGLY ENTERS A LAND OF SOPHISTRY AND FICTION. LUCAS AEROSPACE, LTD. V. UNISON INDUS., LP, 890 F. SUPP. 329, 333-34 N.7, 36 USPQ2D 1235, 1239 N.7 (D. DEL. 1995); SEE ALSO ELF ATOCHEM NORTH AM., INC. V. LIBBEY-OWENS-FORD CO., 894 F. SUPP. 844, 857, 37 USPQ2D 1065, 1075 (D. DEL. 1995); IN RE MAHURKAR DOUBLE LUMEN HEMODIALYSIS CATHETER PATENT LITIGATION, 831 F. SUPP. 1354, 1359, 28 USPQ2D 1801, 1805 (N.D. ILL. 1993) (“[J]UDGES SHOULD NOT PRETEND THAT ALL NOMINALLY ‘LEGAL’ ISSUES MAY BE RESOLVED WITHOUT REFERENCE TO FACTS. . . . WHAT SEEMS CLEAR TO A JUDGE MAY READ OTHERWISE TO [ONE SKILLED IN THE ART].”). II. FROM THE PATENT PRACTITIONER’S STANDPOINT, THIS COURT’S ENTHUSIASTIC ASSERTION OF ITS UNFETTERED REVIEW AUTHORITY HAS THE POTENTIAL TO UNDERCUT THE BENEFITS OF MARKMAN I. MARKMAN I POTENTIALLY PROMISED TO SUPPLY EARLY CERTAINTY ABOUT THE MEANING OF A PATENT CLAIM. THIS CERTAINTY, IN TURN, WOULD PROMPT EARLY SETTLEMENT OF MANY, IF NOT MOST, PATENT SUITS. ONCE THE PARTIES KNOW THE MEANING OF THE CLAIMS, THEY CAN PREDICT WITH SOME RELIABILITY THE LIKELIHOOD OF A FAVORABLE JUDGMENT, FACTOR IN THE ECONOMICS OF THE INFRINGEMENT, AND ARRIVE AT A SETTLEMENT TO SAVE THE COSTS OF LITIGATION. MARKMAN I PROMISED TO PROVIDE THIS BENEFIT EARLY IN THE TRIAL COURT PROCESS. TO PROVIDE FAIRNESS UNDER THE MARKMAN I REGIME, TRIAL JUDGES WOULD PROVIDE CLAIM INTERPRETATIONS BEFORE THE EXPENSE OF TRIAL. PATENT PRACTITIONERS WOULD THEN BE ARMED WITH KNOWLEDGE OF THE PROBABLE OUTCOME OF THE LITIGATION AND COULD FACILITATE SETTLEMENT. THE PROBLEM WITH THIS PLAN WAS IN ITS IMPLEMENTATION BECAUSE AS A QUESTION OF LAW, CLAIM INTERPRETATION IS SUBJECT TO FREE REVIEW BY THE APPELLATE COURT. THE FEDERAL CIRCUIT, ACCORDING TO ITS OWN OFFICIAL 1997 STATISTICS, REVERSED IN WHOLE OR IN PART 53% OF THE CASES FROM DISTRICT COURTS (27% FULLY REVERSED; 26% REVERSED-IN-PART). GRANTED THIS FIGURE DEALS WITH ALL ISSUES IN CASES WITH MANY ISSUES. NONETHELESS, ONE STUDY SHOWS THAT THE PLENARY STANDARD OF REVIEW HAS PRODUCED REVERSAL, IN WHOLE OR IN PART, OF ALMOST 40% OF ALL CLAIM CONSTRUCTIONS SINCE MARKMAN I. A REVERSAL RATE IN THIS RANGE REVERSES MORE THAN THE WORK OF NUMEROUS TRIAL COURTS; IT ALSO REVERSES THE BENEFITS OF MARKMAN I. IN FACT, THIS REVERSAL RATE, HOVERING NEAR 50%, IS THE WORST POSSIBLE. EVEN A RATE THAT WAS MUCH HIGHER WOULD PROVIDE GREATER CERTAINTY. INSTEAD, THE CURRENT MARKMAN I REGIME MEANS THAT THE TRIAL COURT’S EARLY CLAIM INTERPRETATION PROVIDES NO EARLY CERTAINTY AT ALL, BUT ONLY OPENS THE BIDDING. THE MEANING OF A CLAIM IS NOT CERTAIN (AND THE PARTIES ARE NOT PREPARED TO SETTLE) UNTIL NEARLY THE LAST STEP IN THE PROCESS – DECISION BY THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT. TO GET A CERTAIN CLAIM INTERPRETATION, PARTIES MUST GO PAST THE DISTRICT COURT’S MARKMAN I PROCEEDING, PAST THE ENTIRETY OF DISCOVERY, PAST THE ENTIRE TRIAL ON THE MERITS, PAST POST TRIAL MOTIONS, PAST BRIEFING AND ARGUMENT TO THE FEDERAL CIRCUIT – INDEED PAST EVERY STEP IN THE ENTIRE COURSE OF FEDERAL LITIGATION, EXCEPT SUPREME COURT REVIEW. IN IMPLEMENTATION, A DE NOVO REVIEW OF CLAIM INTERPRETATIONS HAS POSTPONED THE POINT OF CERTAINTY TO THE END OF THE LITIGATION PROCESS, AT WHICH POINT, OF COURSE, EVERY OUTCOME IS CERTAIN ANYWAY. IN PRACTICAL TERMS, THIS IMPLEMENTATION RECORD HAS OTHER PERVERSE EFFECTS. TRIAL ATTORNEYS MUST DEVOTE MUCH OF THEIR TRIAL STRATEGY TO POSITIONING THEMSELVES FOR THE “ENDGAME” – CLAIM CONSTRUCTION ON APPEAL. AS THE FOCUS SHIFTS FROM LITIGATING FOR THE CORRECT CLAIM CONSTRUCTION TO PRESERVING WAYS TO COMPEL REVERSAL ON APPEAL, THE UNCERTAINTY, COST, AND DURATION OF PATENT LITIGATION ONLY INCREASE. THUS, THE EN BANC COURT’S DE NOVO REGIME BELIES THE PURPOSE AND PROMISE OF MARKMAN I. SEVERAL HIGH PROFILE APPEALS HAVE ILLUSTRATED THE PROBLEM CREATED BY THE FEDERAL CIRCUIT’S HIGH REVERSAL RATE. IN LUBRIZOL, 64 F.3D 1553, AND J.T. EATON & CO. V. ATLANTIC PASTE & GLUE CO., 106 F.3D 1563, 41 USPQ2D 1641 (FED. CIR. 1997), THIS APPELLATE COURT REJECTED NOT ONLY THE TRIAL JUDGE’S CLAIM READING, BUT ALSO THE READINGS ADVOCATED BY BOTH PARTIES AT TRIAL AND THE READINGS ADVOCATED BY ALL EXPERTS IN THE TRIAL. IN FACT, IN EATON, THE FEDERAL CIRCUIT DID NOT BASE ITS INTERPRETATION ON THE SPECIFICATION OR THE TOTALITY OF THE PROSECUTION HISTORY, BUT INSTEAD FOUND ITS MEANING IN A BRIEF EXCERPT FROM THE AFFIDAVIT OF A SINGLE EXPERT WITNESS AT THE END OF A LENGTHY PROSECUTION. SEE 106 F.3D AT 1568, 1570. IF THE PARTIES MIGHT SUCCEED IN CONVINCING THE FEDERAL CIRCUIT TO REVERSE AN ENTIRE TRIAL RESULT WITH AN ARGUMENT NEVER PRESENTED TO THE TRIAL COURT OR WITH A BRIEF EXCERPT FROM HUNDREDS OF PAGES OF PROSECUTION (AGAIN NOT PRESENTED TO THE TRIAL COURT), WOULD THEY BE WISE TO SETTLE AFTER A TRIAL COURT’S READING OF THE CLAIMS? ONE OTHER CASE MAKES THE POINT EVEN MORE PERSUASIVELY. IN CVI/BETA VENTURES, INC. V. TURA LP, 112 F.3D 1146, 42 USPQ2D 1577 (FED. CIR. 1997) (TURA), THE FEDERAL CIRCUIT REVERSED ITS OWN EARLIER CLAIM INTERPRETATION AS A QUESTION OF LAW WHEN THE DEFENDANT AND STAGE OF THE PROCEEDINGS CHANGED. ON A MOTION FOR A PRELIMINARY INJUNCTION IN AN INFRINGEMENT ACTION, A MARYLAND DISTRICT COURT INTERPRETED THE 3% ELASTICITY LIMITATION IN A CLAIM FOR FLEXIBLE EYEGLASS FRAMES. ON APPEAL THE FEDERAL CIRCUIT REVIEWED THIS CLAIM INTERPRETATION AS A QUESTION OF LAW AND AFFIRMED IN A NONPRECEDENTIAL OPINION. SEE CVI/BETA VENTURES, INC. V. CUSTOM OPTICAL FRAMES INC., 1996 WL 338388 (FED. CIR. JUNE 19, 1996) (NONPRECEDENTIAL); SEE ALSO TURA, 112 F.3D AT 1160 N.7. UNDERSTANDING THAT THE LAW MUST NOT CHANGE FROM CASE TO CASE OR FROM CIRCUMSTANCE TO CIRCUMSTANCE, A NEW YORK DISTRICT COURT APPLIED THE FEDERAL CIRCUIT’S CLAIM INTERPRETATION IN A SEPARATE INFRINGEMENT ACTION INVOLVING THE SAME PATENT. AFTER TRIAL, THE DEFENDANT APPEALED. THIS TIME THE FEDERAL CIRCUIT REVERSED THE DISTRICT COURT’S CLAIM INTERPRETATION. SEE TURA, 112 F.3D AT 1149 (“WE CONCLUDE THAT THE DISTRICT COURT DID ERR IN ITS CLAIM CONSTRUCTION.”) (EMPHASIS ADDED). ALTHOUGH THIS COURT REFERRED TO THE NEW YORK DISTRICT COURT’S “ERROR,” THE FEDERAL CIRCUIT HAD IN FACT REVERSED ITSELF. ONE POTENTIAL TRIAL COURT RESPONSE TO THE CVI/BETA PROBLEM MIGHT BE THE ISSUANCE OF ”TENTATIVE” CLAIM CONSTRUCTIONS AS A MATTER OF LAW. SEE INTERNATIONAL COMMUNICATIONS MATERIALS, INC. V. RICOH CO., LTD., 108 F.3D 316, 41 USPQ2D 1957 (FED. CIR. 1997). THIS RESPONSE, OF COURSE, WOULD FURTHER FRUSTRATE THE PARTIES’ DESIRE TO RECEIVE A CERTAIN CLAIM CONSTRUCTION AS EARLY AS POSSIBLE. REGARDLESS, IF THE FEDERAL CIRCUIT’S READING OF THE VERY SAME CLAIM CAN VARY FROM ONE APPEAL TO THE NEXT, EVERY PATENT LITIGANT HAS AN INCENTIVE TO APPEAL EVERY ACTION TO THE FEDERAL CIRCUIT IN HOPES THAT THE STATISTICS WILL HOLD UP AND EVENTUALLY THE APPELLATE COURT WILL REVERSE. EVEN THE FEDERAL CIRCUIT’S CLAIM INTERPRETATIONS AS QUESTIONS OF LAW ARE NOT CERTAIN. IS THIS THE “UNIFORMITY” OUTLINED BY THE SUPREME COURT IN MARKMAN II? III. BECAUSE PATENT TRIAL PRACTITIONERS UNDERSTAND THE DISTINCT PROSPECT OF OVERTURNING TRIAL COURT RESULTS ON APPEAL, THE TRIAL ARENA LOSES SOME OF ITS LUSTER AS THE CENTER STAGE OF THE DISPUTE RESOLUTION DRAMA. INSTEAD THE TRIAL COURT BECOMES A TICKET TO THE REAL CENTER STAGE, THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT. TAKING A CUE FROM THE SUPREME COURT, THIS COURT WOULD MORE WISELY TAKE A FUNCTIONAL APPROACH TO SETTING A STANDARD OF REVIEW FOR CLAIM CONSTRUCTION. IN MARKMAN II, THE SUPREME COURT NOTED THAT NEITHER HISTORY NOR PRECEDENT PROVIDED “CLEAR ANSWERS” ABOUT THE ROLE OF THE JURY AND THE FACTUAL OR LEGAL NATURE OF CLAIM CONSTRUCTION. 116 S. CT. AT 1395. THEREFORE, THE COURT PURSUED A FUNCTIONAL INQUIRY TO DETERMINE WHETHER THE JUDGE OR JURY COULD BEST BALANCE THE COMPLEXITIES OF CLAIM CONSTRUCTION. SEE ID. A SIMILAR FUNCTIONAL INQUIRY MIGHT BEST CLARIFY THE ROLES OF THE TRIAL AND APPELLATE BENCHES DURING CLAIM INTERPRETATION. THE SUPREME COURT HAS PROVIDED SOME GUIDELINES FOR SUCH A FUNCTIONAL APPROACH. THE COURT COUNSELS APPELLATE COURTS TO DEFER “WHEN IT APPEARS THAT THE DISTRICT COURT IS ‘BETTER POSITIONED’ THAN THE APPELLATE COURT TO DECIDE THE ISSUE IN QUESTION OR THAT PROBING APPELLATE SCRUTINY WILL NOT CONTRIBUTE TO THE CLARITY OF LEGAL DOCTRINE.” SALVE REGINA COLLEGE V. RUSSELL, 499 U.S. 225, 233 (1991). AT ANOTHER POINT, THE COURT CAUTIONS: “[T]HE REVIEWING ATTITUDE THAT A COURT OF APPEALS TAKES TOWARD A DISTRICT COURT DECISION SHOULD DEPEND UPON ‘THE RESPECTIVE INSTITUTIONAL ADVANTAGES OF TRIAL AND APPELLATE COURTS.’” FIRST OPTIONS OF CHICAGO, INC. V. KAPLAN, 514 U.S. 938, 948 (1995) (QUOTING SALVE REGINA, 499 U.S. AT 233). APPLYING THIS GENERAL COUNSEL, THE TRIAL JUDGE ENJOYS A POTENTIALLY SUPERIOR POSITION TO ENGAGE IN CLAIM INTERPRETATION. FOR THE COMPLEX CASE WHERE THE CLAIM LANGUAGE AND SPECIFICATION DO NOT SUMMARILY DISPOSE OF CLAIM CONSTRUCTION ISSUES, THE TRIAL COURT HAS TOOLS TO ACQUIRE AND EVALUATE EVIDENCE THAT THIS COURT LACKS. TRIAL JUDGES CAN SPEND HUNDREDS OF HOURS READING AND REREADING ALL KINDS OF SOURCE MATERIAL, RECEIVING TUTORIALS ON TECHNOLOGY FROM LEADING SCIENTISTS, FORMALLY QUESTIONING TECHNICAL EXPERTS AND TESTING THEIR UNDERSTANDING AGAINST THAT OF VARIOUS EXPERTS, EXAMINING ON SITE THE OPERATION OF THE PRINCIPLES OF THE CLAIMED INVENTION, AND DELIBERATING OVER THE MEANING OF THE CLAIM LANGUAGE. IF DISTRICT JUDGES ARE NOT SATISFIED WITH THE PROOFS PROFFERED BY THE PARTIES, THEY ARE NOT BOUND TO A PREPARED RECORD BUT MAY COMPEL ADDITIONAL PRESENTATIONS OR EVEN EMPLOY THEIR OWN COURT-APPOINTED EXPERT. AN APPELLATE COURT HAS NONE OF THESE ADVANTAGES. IT CANNOT DEPART FROM THE RECORD OF THE TRIAL PROCEEDINGS. TO PROPERLY MARSHAL ITS RESOURCES, THE APPELLATE BENCH MUST ENFORCE STRICT TIME AND PAGE LIMITS IN ORAL AND WRITTEN PRESENTATIONS. MOREOVER A STERILE WRITTEN RECORD CAN NEVER CONVEY ALL THE NUANCES AND INTANGIBLES OF THE DECISIONAL PROCESS. INDEED A CAREFUL CONSIDERATION OF THE INSTITUTIONAL ADVANTAGES OF THE DISTRICT COURT WOULD COUNSEL DEFERENCE. THIS COURT’S CATEGORICAL RESPONSE THAT CLAIM INTERPRETATION INVOLVES NO FACTUAL ASSESSMENTS DOES NOT ADVANCE A FUNCTIONAL ANALYSIS OF TRIAL AND APPELLATE ROLES IN CLAIM CONSTRUCTION. AS A MATTER OF FACT (SO TO SPEAK), CLAIM CONSTRUCTION REQUIRES ASSESSMENT OF CUSTOM AND USAGE IN THE RELEVANT ART, ASSESSMENT OF EVENTS DURING PROSECUTION, ASSESSMENT OF THE LEVEL OF ORDINARY SKILL IN THE ART, ASSESSMENT OF THE UNDERSTANDING OF SKILLED ARTISANS AT THE TIME OF INVENTION – TO NAME JUST A FEW FACTUAL COMPONENTS OF THE COMPLEX PROCESS OF CLAIM INTERPRETATION. A CAREFUL FUNCTIONAL ANALYSIS COUNSELS DEFERENCE FOR DISTRICT COURT CLAIM INTERPRETATIONS. IV. THE SUPREME COURT MAY HAVE OFFERED A PATH OUT OF THIS PREDICAMENT. AT LEAST THREE TIMES IN MARKMAN II, AS NOTED EARLIER, THE COURT ALLUDED TO THE FACTUAL COMPONENT OF CLAIM INTERPRETATION. AT NO POINT DID MARKMAN II ADDRESS THE APPROPRIATE STANDARD OF REVIEW. NONETHELESS THIS COURT MISSES THE OPPORTUNITY TO IMPROVE CERTAINTY IN PATENT PRACTICE BY GIVING APPROPRIATE DEFERENCE TO TRIAL COURT CLAIM INTERPRETATIONS, PARTICULARLY IN COMPLEX CASES. IF THIS COURT ACCORDS MORE DEFERENCE TO TRIAL COURT INTERPRETATIONS IN THE COMPLEX CASES, SOON THE DISTRICT COURTS WILL PROVIDE THE DESIRED CERTAINTY EARLY IN THE PROCESS. AT THAT POINT, MARKMAN I WILL FULFILL ITS PROMISE. ADMINISTRATION OF PATENT LAW WILL MOVE TOWARD LESS COSTLY DISPUTES AND EARLIER SETTLEMENTS. MARKMAN I SET OUT TO IMPROVE PATENT LAW ADMINISTRATION BY REMOVING UNCERTAINTIES FROM THE DISPUTE RESOLUTION PROCESS (THE CHIEF UNCERTAINTY, OF COURSE, BEING JURY RESULTS). INADVERTENTLY THE REASONING IN MARKMAN I HAS POSTPONED THE POINT OF CERTAINTY TO THE EXTREME END OF THE JUDICIAL PROCESS. THIS DELAY BOTH DISRUPTS THE ORDERLINESS OF TRIALS AND PRACTITIONERS’ HOPES FOR MORE EFFICIENT AND EARLIER CLAIM CONSTRUCTIONS. THE SUPREME COURT REMOVED THE JURY UNCERTAINTY WITH ITS DECISION AND, BY RECOGNIZING A FACTUAL COMPONENT IN CLAIM INTERPRETATION, PROVIDED A WAY FOR THIS COURT TO ACCOMPLISH MUCH OF ITS EARLY GOALS. BY ACCORDING SOME DEFERENCE WHERE APPROPRIATE, THIS COURT CAN RESTORE THE TRIAL COURT’S PROMINENCE IN THE CLAIM INTERPRETATION FUNCTION AND BRING AGAIN MORE CERTAINTY AT AN EARLIER STAGE OF THE JUDICIAL PROCESS. APPLYING THE SUPREME COURT’S REASONING FOR HABEAS PROCEEDINGS TO CLAIM CONSTRUCTION, “ADOPTION OF [A RULE OF APPROPRIATE DEFERENCE] . . . WILL HAVE THE SALUTARY EFFECT OF MAKING THE [DISTRICT COURT’S] TRIAL ON THE MERITS THE ‘MAIN EVENT,’ SO TO SPEAK, RATHER THAN A ‘TRYOUT ON THE ROAD’ FOR WHAT WILL LATER BE THE DETERMINATIVE [APPEAL TO THE FEDERAL CIRCUIT].” WAINWRIGHT V. SYKES, 433 U.S. AT 90. THIS CERTAINTY, IN TURN, WOULD STIMULATE MORE SETTLEMENTS AND EFFICIENT DECISION MAKING - THE PROMISE OF MARKMAN I. WITH THIS REASONING IN MIND, I RESPECTFULLY DISSENT FROM THE CLAIM INTERPRETATION PRONOUNCEMENTS OF THE EN BANC OPINION, CONCUR IN THE JUDGMENT, AND JOIN ONLY PART IV OF THE EN BANC OPINION. UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 96-1286, -1287 CYBOR CORPORATION, PLAINTIFF-APPELLANT, V. FAS TECHNOLOGIES, INC., AND FASTAR LTD., DEFENDANTS/CROSS-APPELLANTS. NEWMAN, CIRCUIT JUDGE, WITH WHOM CHIEF JUDGE MAYER JOINS; ADDITIONAL VIEWS. AS THIS CASE ILLUSTRATES, PERFECTION IS ELUSIVE IN THE AFTERMATH OF THE FEDERAL CIRCUIT'S DECISION IN MARKMAN V. WESTVIEW INSTRUMENTS, INC., 52 F.3D 967, 34 USPQ2D 1321 (FED. CIR. 1995) (EN BANC), AFF'D, 116 S. CT. 1384, 38 USPQ2D 1461 (1996). THE EXPECTATION OF GREATER STABILITY IN THE APPLICATION OF PATENT LAW—THUS ENHANCING CONSISTENCY IN RESULT, REDUCING THE COST OF LITIGATION, AND INDEED REDUCING LITIGATION BY DIMINISHING THE UNCERTAINTIES OF JURY TRIALS—HAS NOT BEEN WELL ACHIEVED. MOST OF THE SHORTFALLS BETWEEN EXPECTATION AND REALITY ARISE FROM THE MANNER OF IMPLEMENTATION OF OUR DE NOVO AUTHORITY FOR CLAIM INTERPRETATION. I CITE THREE PRINCIPAL AREAS. THE FIRST AREA RELATES TO THE TREATMENT OF CERTIFIED QUESTIONS. ALTHOUGH THE DISTRICT COURTS HAVE EXTENDED THEMSELVES, AND SO-CALLED "MARKMAN HEARINGS" ARE COMMON, THIS HAS NOT BEEN ACCOMPANIED BY INTERLOCUTORY REVIEW OF THE TRIAL JUDGE'S CLAIM INTERPRETATION. THE FEDERAL CIRCUIT HAS THUS FAR DECLINED ALL SUCH CERTIFIED QUESTIONS. INDEED, THE CERTIFIED QUESTION ISSUE WAS AN EARLY WARNING OF THE DIFFICULTIES THAT COULD FLOW FROM PREMATURE CLAIM INTERPRETATION, FOR IT WAS OFTEN APPARENT FROM THE PETITION THAT THE CLAIMS COULD NOT BE FINALLY AND CORRECTLY INTERPRETED WITHOUT EVIDENCE BEYOND THE PATENT DOCUMENTS. THE ABSENCE OF EXTRINSIC EVIDENCE, OF RESOLUTION OF CONFLICTING POSITIONS, AND OF DETAILED ANALYSIS AND FINDINGS BY THE TRIAL JUDGE, INHIBITED CLAIM INTERPRETATION BY CERTIFIED QUESTION. THUS, INSTEAD OF CONDUCTING THE EXPECTED DISPOSITIVE DE NOVO REVIEW, WE SIMPLY DECLINED THE QUESTION. THE POSSIBILITY OF EARLY FINALITY TO CLAIM INTERPRETATION HAS NOT MATERIALIZED, WITH TWO UNTOWARD CONSEQUENCES; FIRST, THE DISTRICT COURT HAS HAD TO CONDUCT A PERHAPS UNNECESSARY TRIAL; AND SECOND, THE EVENTUAL ISSUANCE OF A NEW CLAIM INTERPRETATION BY THE FEDERAL CIRCUIT, ON APPEAL AFTER FINAL JUDGMENT, HAS SOMETIMES REQUIRED A SECOND TRIAL OF THE ISSUE OF INFRINGEMENT. NONE OF THESE CONSEQUENCES COMPORTS WITH OUR INSISTENCE THAT CLAIM INTERPRETATION IS PURELY A MATTER OF LAW, THAT IT NEEDS NO FINDINGS AT TRIAL, AND THAT IT WILL BE DECIDED DE NOVO BY THE FEDERAL CIRCUIT. THE SECOND AREA OF DISAPPOINTED EXPECTATIONS HAS FLOWED FROM THE UNEXPECTEDLY CREATIVE DE NOVO CLAIM INTERPRETATIONS THAT THE FEDERAL CIRCUIT HAS ISSUED IN A FEW CASES. THIS UNPREDICTABILITY IN ADMINISTRATION OF THE LAW OF PATENT CLAIMING HAS ADDED A SPORTING ELEMENT TO OUR BENCH. IT HAS NOT ONLY RELEASED APPELLANTS' IMAGINATIONS ON APPEAL, BUT IT WILL SURELY ADD COMPLEXITY TO FUTURE TRIALS, AS LAWYERS ATTEMPT TO GUARD AGAINST THE JUDICIAL IMAGINATION. A THIRD CONCERN, ALTHOUGH RARE IN OCCURRENCE, IS OF GREAT SIGNIFICANCE, FOR EVEN ONE CASE WHEREIN THE FEDERAL CIRCUIT HAS DEEMED ITSELF UNCONSTRAINED BY ITS OWN PRIOR INTERPRETATION OF THE SAME PATENT REMOVES FINALITY AND ENCOURAGES RELITIGATION OF EVERY PATENT. THE PROMISE OF UNIFORMITY AND FINALITY, FLOWING FROM DECISIONS OF NATIONAL EFFECT, IS A FAILED PROMISE IF WE ARE NOT BOUND BY STARE DECISIS IN OUR OWN CLAIM INTERPRETATION. THESE FLAWS ARE OF SERIOUS CONCERN, NO LESS BECAUSE THEY ARE OF OUR OWN MAKING. THEY ARE NOT IRREMEDIABLE, ALTHOUGH REMEDY MAY REQUIRE A LARGER VISION THAN WE POSSESS. HOWEVER, TODAY'S EN BANC OPINION ADDS ANOTHER ENCUMBRANCE TO THE PROCEDURES FOR INTERPRETATION OF CLAIMS, FURTHER INHIBITING FRUITION OF THE MARKMAN EXPECTATION. WHEN THE ISSUES IN LITIGATION INVOLVE COMPLEX QUESTIONS OF SCIENCE AND TECHNOLOGY, A SPECIAL EFFORT IS REQUIRED OF THE JUDICIAL PROCESS. IN LITIGATION OF PATENT DISPUTES THE NATURE OF THE EVIDENCE THAT IS RECEIVED AND CONSIDERED, THE BALANCE BETWEEN THE TRIAL AND APPELLATE FUNCTIONS, AND THE EVIDENTIARY RULES GOVERNING OPINION TESTIMONY AND EXPERTS, ARE OF PARTICULAR IMPORTANCE. TODAY'S DECISION FALLS SHORT IN EACH OF THESE AREAS. PROCEDURAL AND EVIDENTIARY RULES SHOULD WEIGH TOWARD FACILITATING JUDICIAL UNDERSTANDING OF THE ISSUES AND THEREBY REACHING THE CORRECT RESULT. YET THE FEDERAL CIRCUIT RULES TODAY THAT IT WILL NOT CONSIDER FACTUAL FINDINGS OF THE TRIAL COURT, EXPRESSLY DISAVOWING SUCH ACTIONS BY PRIOR PANELS. THE COURT CONTINUES TO DENY THE NEED TO MAKE FINDINGS OF DISPUTED FACTS WHEN INTERPRETING CLAIMS: "[BY] USING CERTAIN EXTRINSIC EVIDENCE THAT THE COURT FINDS HELPFUL AND REJECTING OTHER EVIDENCE AS UNHELPFUL, AND RESOLVING DISPUTES EN ROUTE TO PRONOUNCING THE MEANING OF CLAIM LANGUAGE . . . THE COURT IS NOT CREDITING CERTAIN EVIDENCE OVER OTHER EVIDENCE OR MAKING FACTUAL EVIDENTIARY FINDINGS." MAJ. OP. AT 7 (QUOTING MARKMAN, 52 F.3D AT 981, 34 USPQ2D AT 1331). THE COURT STATES THAT IT NEITHER ACCEPTS THE TRIAL JUDGE'S FINDINGS OF FACT, NOR ACCEPTS THAT THERE ARE FACTUAL ISSUES IN CLAIM INTERPRETATION. WITH THESE STRICTURES ON EVIDENCE, WITNESSES, AND FINDINGS, IT IS FAR FROM CLEAR HOW THE FEDERAL CIRCUIT PROPOSES TO REACH THE CORRECT CLAIM INTERPRETATION. BY CONTINUING THE FICTION THAT THERE ARE NO FACTS TO BE FOUND IN CLAIM INTERPRETATION, WE CONFOUND RATHER THAN EASE THE LITIGATION PROCESS. WITHOUT DOUBT, FACTUAL DISPUTES ARISE AND MUST BE RESOLVED IN ORDER TO INTERPRET THE CLAIMS. SUCH FACTS ARE NORMALLY RESOLVED AT TRIAL—YET WE NOW DENY OURSELVES THE OPPORTUNITY EVEN TO CONSIDER THE FINDINGS OF THE TRIAL COURT. SEE MAJ. OP. AT 12 (DISAVOWING THE PROCEDURE IN A FEDERAL CIRCUIT OPINION WHEREBY THE COURT RECOGNIZED THE TRIAL COURT'S "`TRAINED ABILITY TO EVALUATE [EXPERT] TESTIMONY IN RELATION TO THE OVERALL STRUCTURE OF THE PATENT' AND THE TRIAL COURT'S `BETTER POSITION TO ASCERTAIN WHETHER AN EXPERT'S PROPOSED DEFINITION FULLY COMPORTS WITH THE SPECIFICATION AND CLAIMS'"). THE COURT TODAY NOT ONLY REJECTS THE OPPORTUNITY TO GIVE NORMAL APPELLATE DEFERENCE TO THE PROCEEDINGS AND FINDINGS OF TRIAL, BUT ALSO REJECTS THE OPPORTUNITY TO CONSIDER THEM AT ALL. IN MARKMAN THE EN BANC COURT TOOK THE POSITION THAT IN PATENT CASES, UNLIKE ANY OTHER AREA OF LAW, A DISPUTED QUESTION OF THE MEANING, SCOPE, AND USAGE OF TERMS OF TECHNOLOGIC ART IS NOT A QUESTION OF FACT, OR EVEN OF LAW BASED ON UNDERLYING FACT, BUT IS PURE LAW. HOWEVER, THE SUPREME COURT HAS RELIEVED US OF ADHERENCE TO THIS FICTION, BY ITS RECOGNITION OF THE FACTUAL COMPONENT OF CLAIM INTERPRETATION. FURTHER, THE COURT'S AFFIRMATION THAT CLAIM INTERPRETATION "IS EXCLUSIVELY WITHIN THE PROVINCE OF THE COURT," 116 S. CT. AT 1387, 38 USPQ2D AT 1463, DID NOT SHUT OUT THE TRIAL JUDGE ALONG WITH THE JURY. IN DECLINING TO AFFIRM THE FEDERAL CIRCUIT'S FACT/LAW THEORY, THE COURT OPENED THE DOOR FOR RETREAT FROM THIS ARTIFICIAL CONSTRUCT. I URGE US TO DO SO, FOR EXPERIENCE SHOWS THAT UNFORESEEN AND UNDESIRED CONSEQUENCES ARE FLOWING FROM ITS RIGIDITY. NOW THAT THIS FACT/LAW RIGOR IS NO LONGER NECESSARY FOR CONSTITUTIONAL COMBAT, LET US REVIEW THESE CONSEQUENCES AND ACCEPT THIS INVITATION TO ADVANCE OUR PROCEDURES. FOR EXAMPLE, IN MARKMAN THE FEDERAL CIRCUIT STATED THAT IT IS NOT A FINDING WHEN ONE SIDE'S EVIDENCE IS ACCEPTED AND THE OTHER SIDE'S EVIDENCE IS REJECTED. 52 F.3D AT 981, 23 USPQ2D AT 1331. SINCE ACCEPTING ONE SIDE'S EVIDENCE AND REJECTING THE OTHER'S BASED ON AN ASSESSMENT OF VALIDITY WOULD BE A FINDING, SOME OTHER CRITERION MUST BE THE BASIS FOR THE CHOICE. THE COURT HAS NEVER STATED WHAT THIS CRITERION COULD BE, EXCEPT THAT ACCEPTED EVIDENCE SHOULD BE "HELPFUL," AN ANSWER THAT BEGS THE QUESTION. A FRESH VIEW OF FACT AND LAW WOULD ALSO AMELIORATE THE CONSTRAINTS WE HAVE PLACED ON THE PRESENTATION OF EXTRINSIC EVIDENCE ON THE ISSUE OF CLAIM INTERPRETATION. PATENT LITIGATION NOW OFTEN STARTS WITH A PRELIMINARY HEARING TO INTERPRET THE DISPUTED CLAIM TERMS, AND OFTEN PRODUCES AN EARLY SUMMARY JUDGMENT, A PATH PERHAPS FOSTERED BY OUR FORECLOSURE OF THE CERTIFIED QUESTION. THIS PRELIMINARY RULING CAN BE DISPOSITIVE OF THE DISPUTE, FOR THE SCOPE OF THE CLAIM OFTEN DECIDES WHETHER THERE CAN BE LITERAL INFRINGEMENT. THUS I ADD TO MY CONCERNS THE POSITION OF THE FEDERAL CIRCUIT, HERE REAFFIRMED, THAT EXTRINSIC EVIDENCE IS OF STRICTLY LIMITED AVAILABILITY IN CLAIM INTERPRETATION. SUCH EVIDENCE SHOULD BE ENCOURAGED, NOT RESTRAINED, IF SUMMARY DISPOSITION IS AT HAND. THE VALUE OF EXTRINSIC EVIDENCE IN CLAIM INTERPRETATION IS NOT SURPRISING, BECAUSE PATENT DOCUMENTS ARE WRITTEN BY AND FOR PERSONS IN THE FIELD OF THE INVENTION, NOT FOR JUDGES. JUDGES NOT ONLY NEED A LARGER UNDERSTANDING OF THE SCIENCE OR TECHNOLOGY, BUT WE ALSO NEED HELP WITH UNDERSTANDING HOW THE PARTICULAR TERMS AS USED IN THE PATENT ARE VIEWED BY PERSONS IN THE FIELD OF THE INVENTION. AS JUDGE SCHWARZER OBSERVED: THE CONTEXT IN WHICH [ISSUES OF SCIENCE AND TECHNOLOGY] ARISE VARIES WIDELY, BUT GENERALLY THEY SHARE ONE CHARACTERISTIC. THEY CHALLENGE THE ABILITY OF JUDGES AND JURIES TO COMPREHEND THE ISSUES—AND THE EVIDENCE—AND TO DEAL WITH THEM IN INFORMED AND EFFECTIVE WAYS. AS A RESULT, THEY TEND TO COMPLICATE THE LITIGATION, INCREASE EXPENSE AND DELAY, AND JEOPARDIZE THE QUALITY OF JUDICIAL AND JURY DECISION MAKING. FEDERAL JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 1 (1994). THE FEDERAL CIRCUIT'S RULING THAT EXTRINSIC EVIDENCE MUST BE RESTRICTED UNLESS THERE IS A FACIAL AMBIGUITY IN THE MEANING OF THE CLAIM IS AN UNNECESSARY RESTRAINT ON POTENTIALLY USEFUL EVIDENCE. SEE DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC., 509 U.S. 579, 588 (1993) ("`IF SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED KNOWLEDGE WILL ASSIST THE TRIER OF FACT TO UNDERSTAND THE EVIDENCE OR TO DETERMINE A FACT IN ISSUE, A WITNESS QUALIFIED AS AN EXPERT . . . MAY TESTIFY THERETO IN THE FORM OF AN OPINION OR OTHERWISE.'") (QUOTING FED. R. EVID. 702). OF COURSE THE PRIMARY SOURCE OF INFORMATION CONCERNING THE CLAIMED INVENTION IS THE PATENT DOCUMENTS. BUT SUCH DOCUMENTS ARE DIRECTED TO PERSONS KNOWLEDGEABLE IN THE FIELD; ADDITIONAL EVIDENCE AND EXPERT TESTIMONY AS TO THEIR MEANING SHOULD BE THE RULE, NOT THE EXCEPTION. SO-CALLED "EXTRINSIC" EVIDENCE—THE EVIDENCE OF EXPERT WITNESSES AND OF EXPERIMENTATION, EXHIBITS, DEMONSTRATIONS, AND EXPLANATION—SHOULD BE TREATED LIKE ANY OTHER EVIDENCE, AND RECEIVED AND GIVEN WEIGHT AND VALUE AS APPROPRIATE. OUR BROAD CONSTRAINT ON RESORT TO SUCH EVIDENCE IS AN UNNECESSARY BAR TO ENLIGHTENMENT. IT IS ALSO AN INCURSION INTO THE AUTHORITY OF THE TRIAL COURT. SEE GENERAL ELECTRIC CO. V. JOINER, 118 S.CT. 512, 515 (1997) (DECISION OF TRIAL COURT TO ADMIT OR EXCLUDE EXPERT TESTIMONY IS REVIEWED ON ABUSE OF DISCRETION STANDARD). THE REAL ISSUE WITH RESPECT TO SUCH EVIDENCE IS NOT THE THRESHOLD QUESTION OF ADMISSIBILITY, AS THIS COURT APPEARS TO HOLD, BUT OF WEIGHT, UPON EXAMINATION OF THE EVIDENCE AND IN CONJUNCTION WITH THE OTHER EVIDENCE. THESE TOO ARE MATTERS FOR THE TRIAL JUDGE, AND WHEN THE THRESHOLD CRITERIA OF RELEVANCE AND RELIABILITY ARE MET, SEE DAUBERT, THE EVIDENCE SHOULD BE RECEIVED AND CONSIDERED AS APPROPRIATE TO ITS CREDIBILITY AND WEIGHT. IT FOLLOWS THAT THE TRIAL COURT'S FACTUAL FINDINGS WITH RESPECT TO EVIDENCE RELEVANT TO CLAIM INTERPRETATION SHOULD BE TREATED, ON APPEAL, LIKE ANY OTHER FINDING OF THE TRIAL COURT. THUS IT IS QUITE DISCOURAGING TO OBSERVE THIS EN BANC RULING WHEREIN THE FEDERAL CIRCUIT PROHIBITS ITSELF FROM CONSIDERING THE FINDINGS OF FACT MADE BY THE TRIAL COURT. THE MAJORITY OPINION DISAVOWS THIS COURT'S PRIOR STATEMENT THAT "[T]HE DISTRICT COURT'S FINDINGS OF SCIENTIFIC/TECHNOLOGICAL FACT WERE MATERIAL TO THE ISSUE OF CONSTRUCTION OF THE TERM." THIS DISAVOWAL DEPRIVES THE COURT, AND THE PARTIES, OF THE ACCUMULATED PROGRESS AND EXPERIENCE OF THE TRIAL, INCLUDING THE FINDINGS OF THE TRIAL JUDGE, AND LEAVES US ON APPEAL WITH AN EXPURGATED RECORD AND GENERALLY INFERIOR BASIS OF DECISION. RECOGNIZING THAT OUR APPELLATE ROLE IS TO DECIDE WHETHER THE CLAIMS WERE CORRECTLY INTERPRETED IN LIGHT OF ALL OF THE EVIDENCE, IT IS MYSTERIOUS WHY WE CHOOSE TO SELF-CENSOR WHAT WE WILL CONSIDER ON APPEAL. IT IS EQUALLY OBSCURE WHY THIS COURT WOULD PROHIBIT ITSELF FROM RELYING ON A TRIAL COURT'S FINDINGS, OR FROM CHOOSING BETWEEN DISPUTED EXPERT POSITIONS. I STRONGLY DISAGREE WITH THE MAJORITY'S VIEW OF THE ROLE OF EXTRINSIC EVIDENCE, AT TRIAL AND AS CONSIDERED ON APPEAL. IN CONTRAST, A RETURN TO THE TRADITIONAL TRIAL/APPELLATE RELATIONSHIP WOULD ACHIEVE SEVERAL IMPORTANT RESULTS. IT WOULD RATIONALIZE THE ADMISSIBILITY OF RELEVANT EXTRINSIC EVIDENCE, APPELLATE DEFERENCE WOULD BE RESTORED INSTEAD OF DISAVOWED, AND APPELLATE REVIEW WOULD BE IN ACCORDANCE WITH THE RULES. THE PROCESSES OF BOTH TRIAL AND APPEAL WOULD BENEFIT. THIS IS PARTICULARLY IMPORTANT BECAUSE THE EVIDENCE INVOLVED IN CLAIM INTERPRETATION, WHETHER INTRINSIC OR EXTRINSIC, IS OFTEN SCIENTIFIC OR TECHNOLOGIC. THE EVIDENCE OF WHAT THE INVENTION IS, HOW IT WORKS, WHAT THE TECHNICAL WORDS MEANT TO PERSONS IN THE FIELD AT SOME PAST TIME, CAN BE OF EXTREME COMPLEXITY. WHEN THERE IS A DISPUTE AS TO WHAT A TERM OF TECHNICAL ART OR USAGE MEANS OR ENCOMPASSES, SUCH EVIDENCE IS RELEVANT AND OFTEN IS INDISPENSABLE. WHY WOULD OUR COURT FORECLOSE, OR PLACE OBSTACLES IN THE PATH OF, ADDUCING AND CONSIDERING SUCH EVIDENCE? SURELY THE BETTER VIEW IS TO ENCOURAGE JUDICIAL ACCESS TO SCIENTIFIC EVIDENCE AND FINDINGS BASED THEREON. THE ULTIMATE BENEFICIARY WOULD BE THE PARTIES, FOR THE COURTS WOULD BE LESS RESTRICTED IN THE SEARCH FOR THE CORRECT AND JUST RESULT IN PATENT CASES. THUS I MUST, RESPECTFULLY, DISSENT FROM THE COURT'S RULINGS ON THESE ISSUES. FOOTNOTES * CHIEF JUDGE HALDANE ROBERT MAYER ASSUMED THE POSITION OF CHIEF JUDGE ON DECEMBER 25, 1997. ** SENIOR CIRCUIT JUDGE GLENN L. ARCHER, JR. VACATED THE POSITION OF CHIEF JUDGE ON DECEMBER 24, 1997. 1 THE ACTUAL PATENT CLAIM IS NOT WRITTEN IN PARAGRAPH FORM AS SHOWN HERE; WE HAVE ADDED THE BREAKS FOR EASE OF REFERENCE TO THE CLAIM’S LIMITATIONS. 2 BOTH FASTAR AND FAS TECHNOLOGIES FILED AN ANSWER TO CYBOR’S COMPLAINT. FASTAR ALONE ORIGINALLY FILED THE COUNTERCLAIM, BUT FAS TECHNOLOGIES WAS JOINED AS A COUNTERCLAIMANT AFTER THE JURY TRIAL ON LIABILITY WAS COMPLETED. 3 IT IS DIFFICULT TO RECONCILE THE LANGUAGE AND REASONING IN THIS COURT'S RECENT OPINION IN FROMSON V. ANITEC PRINTING PLATES, INC., 132 F.3D 1437, 45 USPQ2D 1269 (FED. CIR. 1997), WITH MARKMAN I, ALTHOUGH THE OPINION PURPORTS TO DO SO. AS WE STATED IN MARKMAN I, "EXTRANEOUS EVIDENCE [SUCH AS THE EXPERT TESTIMONY IN FROMSON] IS TO BE USED FOR THE COURT'S UNDERSTANDING OF THE PATENT" AND IN DOING SO, THE COURT "IS NOT CREDITING CERTAIN EVIDENCE OVER OTHER EVIDENCE OR MAKING FACTUAL EVIDENTIARY FINDINGS." MARKMAN I, 52 F.3D AT 981, 34 USPQ2D AT 1331 (EMPHASIS IN ORIGINAL). RATHER, WE CONSIDERED SUCH EVIDENCE TO BE AN AID TO THE COURT IN COMING TO A CORRECT CONCLUSION AS TO THE TRUE MEANING OF THE LANGUAGE EMPLOYED IN THE PATENT. SEE ID. AT 980, 34 USPQ2D AT 1330. THE SUPREME COURT IN EFFECT CONFIRMED THIS WHEN IT STATED THAT THE CREDIBILITY DETERMINATIONS AMONG EXPERTS "WILL BE SUBSUMED WITHIN THE NECESSARILY SOPHISTICATED ANALYSIS OF THE WHOLE DOCUMENT." MARKMAN II, 116 S. CT. AT 1395. IN FROMSON, THE DISTRICT COURT "RELIED PRIMARILY ON THE '754 SPECIFICATION WHICH DESCRIBES FROMSON'S FIRST ANODIZATION STEP AS PRODUCING [A] POROUS OXIDE" BARRIER. FROMSON, 132 F.3D AT 1442, 45 USPQ2D AT 1272. ALTHOUGH THE EXTRINSIC EVIDENCE – EXPERT TESTIMONY, PRIOR ART, AND SCIENTIFIC TESTS – CONFIRMED THE DISTRICT COURT'S CLAIM CONSTRUCTION, IT WAS DIRECTED PRIMARILY TO WHETHER ANITEC'S THIN, NONPOROUS OXIDE LAYER INFRINGED THE CLAIMS. TO THIS EXTENT, THE HOLDING IN FROMSON AFFIRMING THE DISTRICT COURT'S CLAIM INTERPRETATION FOLLOWS MARKMAN I. SEE BELL & HOWELL DOCUMENT MANAGEMENT V. ALTEK SYS., 132 F.3D 701, 705-06, 45 USPQ2D 1034, 1038 (FED. CIR. 1997); VITRONICS CORP. V. CONCEPTRONIC, INC., 90 F.3D 1576, 1584, 39 USPQ2D 1573, 1578 (FED. CIR. 1996). 4 IF THIS WERE SO, SURELY THE SUPREME COURT WOULD HAVE DISCUSSED WHETHER SUBSIDIARY OR UNDERLYING FACT QUESTIONS SHOULD BE DECIDED BY THE JUDGE OR THE JURY. 5 BECAUSE CYBOR'S CLAIM CONSTRUCTION ARGUMENTS RELATE TO THE NARROWING OF CLAIM SCOPE REQUIRED BY PROSECUTION HISTORY, WE NEED NOT CONSIDER WHETHER EQUIVALENCE UNDER § 112, 6 IS A QUESTION OF LAW OR FACT. SEE MARKMAN I, 52 F.3D AT 977 N.8, 34 USPQ2D AT 1327 N.8. HERE, THE QUESTION OF EQUIVALENCE WAS GIVEN TO THE JURY AND CYBOR DOES NOT CHALLENGE THE EQUIVALENCE OF ITS ACCUSED DEVICE IF PROSECUTION HISTORY DOES NOT NARROW THE SCOPE OF THE CLAIMS AS CYBOR ARGUES. ONE CONCURRING OPINION ALSO RECOGNIZES THAT CYBOR'S CLAIM CONSTRUCTION ARGUMENTS RELATE SOLELY TO WHETHER THE PROSECUTION HISTORY REQUIRES THE EXCLUSION OF THE EXTERNAL "RESERVOIR STRUCTURES LIKE CYBOR'S FROM CONSIDERATION AS AN EQUIVALENT UNDER § 112(6)." SEE OPINION CONCURRING IN THE JUDGMENT OF CHIEF JUDGE MAYER, INFRA, AT 13-14. 6 CYBOR CONTENDS THAT THE JURY WAS NOT ADEQUATELY INSTRUCTED ON THE MEANING OF THE CLAIMS. WE NOTE, HOWEVER, THAT THIS CASE WAS TRIED BEFORE MARKMAN I AND THAT, WHILE A FULLER INSTRUCTION TO THE JURY ON THE MEANING OF THE CLAIM MIGHT BE DESIRABLE, THE INSTRUCTIONS WERE NOT ERRONEOUS. MOREOVER, THE DISTRICT COURT'S DENIAL OF THE MOTION FOR RECONSIDERATION APPROVED THE ADDITIONAL, PRESUMPTIVE CONSTRUCTION OF THE CLAIMS BY THE JURY. 7 ONE CONCURRING OPINION SUGGESTS THAT THIS COURT CANNOT AFFIRM THE DECISION BELOW UNDER A DE NOVO STANDARD OF REVIEW, ASSERTING THAT THE BASIS FOR THE JURY'S DECISION IS UNCLEAR. WE DISAGREE THAT THE JURY COULD HAVE HAD IN MIND THE SEVERAL VARIATIONS POSITED BY THE CONCURRENCE. IT IS PATENTLY IMPOSSIBLE FOR CYBOR'S PUMP, WITHOUT A RESERVOIR, TO PERFORM THE FUNCTIONS CALLED FOR BY THE PATENT. THUS, THE JURY HAD TO CONSIDER THE COMBINATION OF CYBOR'S PUMP AND THE EXTERNAL, ATTACHED RESERVOIR AS BEING A "PUMPING MEANS" EQUIVALENT TO THE STRUCTURE DISCLOSED IN THE PATENT, WHICH CONSISTED OF A PUMP WITH AN INTERNAL RESERVOIR. 1 RATHER THAN BLUNTLY FORCE THE SQUARE PEG OF CLAIM CONSTRUCTION INTO THE ROUND HOLE OF FACT OR LAW, THE COURT DESCRIBED THE QUESTIONS PRESENTED BY CLAIM CONSTRUCTION IN MORE CHARY TERMS: “[B]UT THE SOUNDER COURSE, WHEN AVAILABLE, IS TO CLASSIFY A MONGREL PRACTICE,” “NO CLEAR ANSWERS,” “IN THEORY THERE COULD BE A CASE,” “LEAVES US DOUBTFUL,” “[I]N THE MAIN,” “[W]E ACCORDINGLY THINK THERE IS SUFFICIENT REASON TO TREAT CONSTRUCTION OF TERMS OF ART LIKE MANY OTHER RESPONSIBILITIES THAT WE CEDED TO A JUDGE,” “INDEPENDENT REASON TO ALLOCATE,” “TREATING INTERPRETIVE ISSUES AS PURELY LEGAL WILL PROMOTE . . . .” MARKMAN, 116 S. CT. 1390-96 (EMPHASIS ADDED). EVEN A CURSORY READING OF THAT OPINION INDICATES THAT THE COURT MEANT TO DETERMINE WHO SHOULD INTERPRET THE CLAIMS, WITHOUT MANDATING A STANDARD OF APPELLATE REVIEW TO BE USED UNDER ALL CIRCUMSTANCES. 2 ALTHOUGH HAVING A JURY MAKE A LEGAL DETERMINATION OF THE EFFECT OF STATEMENTS MADE DURING PROSECUTION OF THE PATENT IS ERROR, ALONE THIS ERROR WAS HARMLESS BECAUSE TO FIND INFRINGEMENT, THE JURY MUST HAVE ARRIVED AT THE SAME LEGAL CONCLUSION THAT WE DID ON APPEAL: THAT THE PROSECUTION HISTORY DOES NOT EXCLUDE CYBOR’S EXTERNAL RESERVOIR FROM THE JURY’S CONSIDERATION OF EQUIVALENTS UNDER PARAGRAPH 112(6). 3 FINDINGS OF FACT ARE PRESUMED WHERE THEY WOULD BE NECESSARY TO SUPPORT A JURY’S VERDICT. SEE PERKINS-ELMER CORP. V. COMPUTERVISION CORP., 732 F.2D 888, 893, 221 USPQ 669, 673 (FED. CIR. 1984) (“TO FACILITATE REVIEW ON A MOTION FOR [JUDGMENT AS A MATTER OF LAW] AND ON APPEAL, IT IS PREFERRED THAT A JURY BE PROVIDED WITH SPECIAL INTERROGATORIES DESIGNED TO REVEAL MORE CLEARLY THE FINDINGS IT MADE. ABSENT SUCH INTERROGATORIES, THE LAW PRESUMES THE EXISTENCE OF FINDINGS NECESSARY TO SUPPORT THE VERDICT THE JURY REACHED.”); SEE ALSO RAILROAD DYNAMICS, INC. V. A. STUCKI CO., 727 F.2D 1506, 1516, 220 USPQ 929, 939 (FED. CIR. 1984). 8 IN FACT, THE DISTRICT COURT SUBMITTED THIS CASE TO A JURY BEFORE THIS COURT DECIDED MARKMAN V. WESTVIEW INSTRUMENTS, INC., 52 F.3D 967, 979, 34 USPQ2D 1321, 1329 (FED. CIR. 1995) (MARKMAN I). THUS, THE DISTRICT COURT’S JURY INSTRUCTIONS ONLY PARTIALLY CONSTRUED THE CLAIMS, AND THE EN BANC OPINION RELIES, AS IT MUST, UPON WHAT IT PRESUMES MUST HAVE BEEN THE JURY’S CLAIM CONSTRUCTION. NOR DID THE DISTRICT COURT DELIBERATELY ACCEPT AND RELY UPON EXPERT TESTIMONY TO UNDERSTAND AND INTERPRET THE CLAIM TERMS, A CENTRAL ISSUE IN MARKMAN I. HEEDLESS OF THESE PROBLEMS, THIS COURT HAS SELECTED THIS CASE FOR EN BANC REVIEW. FROMSON V. ANITEC PRINTING PLATES, INC., 132 F.3D 1437, 45 USPQ2D 1269 (FED. CIR. 1997), MAY HAVE BEEN A MORE SUITABLE CHOICE FOR MEANINGFUL EN BANC CONSIDERATION OF THE ISSUE OF APPELLATE DEFERENCE IN CLAIM CONSTRUCTION. THE DISTRICT COURT DECIDED FROMSON BY APPLYING THE MARKMAN I REGIME. THE FROMSON DISTRICT COURT ALSO RELIED UPON EXTRINSIC EVIDENCE AND FINDINGS OF SCIENTIFIC/TECHNOLOGIC FACT TO INTERPRET THE MEANING OF CLAIM TERMS TO ONE OF ORDINARY SKILL IN THE ART AT THE TIME OF THE INVENTION (OVER TWENTY YEARS AGO). THUS, THE FACTS OF FROMSON MIGHT HAVE BETTER ILLUSTRATED HOW DIFFERENT STANDARDS OF REVIEW CAN DIRECT THE OUTCOME ON APPEAL. 9 THE FOLLOWING IS AN INCOMPLETE LIST OF PROCEDURAL DEVIATIONS REQUIRED BY MARKMAN I: 1. MULTIPLE TRIALS, PROBLEM I: IF HEARINGS ARE NECESSARY TO INTERPRET COMPLEX CLAIMS, THE TRIAL COURT MUST SET ASIDE TIME IN ITS CROWDED DOCKET FOR ONE PROCEEDING TO INTERPRET CLAIMS AND A SECOND (POTENTIALLY WITH A JURY) TO DETERMINE INFRINGEMENT AND OTHER ISSUES. 2. CLAIM INTERPRETATION, PROBLEM I: FEARING THAT IT MAY NOT RECEIVE THE OPPORTUNITY TO SUPPLEMENT EXPERT REPORTS OR REOPEN DISCOVERY AFTER THE JUDGE’S INTERPRETATION, A PARTY OFTEN ARGUES ALTERNATIVE CLAIM CONSTRUCTION THEORIES FROM THE OUTSET OF LITIGATION. THIS EXTENDS THE TIME AND EXPENSE OF THE CLAIM INTERPRETATION PROCEEDINGS. 3. BIAS TOWARD SUMMARY JUDGMENTS: IN PRACTICAL TERMS, MARKMAN I DIRECTS THE PROCEEDINGS TOWARD SUMMARY JUDGMENT ON THE CENTRAL ISSUE OF THE LITIGATION AT A POTENTIALLY PREMATURE STAGE OF ISSUE DEVELOPMENT. PREMATURELY ADDRESSING ISSUES, EVEN AT THE APPELLATE LEVEL, CAN RESULT IN EXPENSIVE REPETITION OF EFFORT. SEE CVI/BETA VENTURES, INC. V. TURA LP, 112 F.3D 1146, 1157-58, 1160 N.7, 42 USPQ2D 1577, 1585, 1587 N.7 (FED. CIR. 1997) (FINDING ERROR IN A CLAIM CONSTRUCTION THAT HAD BEEN AFFIRMED IN AN EARLIER APPEAL), CERT. DENIED, 118 S. CT. 1039 (1998). 4. CLAIM INTERPRETATION, PROBLEM II: AS SOON AS THE TRIAL COURT ISSUES A CLAIM INTERPRETATION, BOTH SIDES OFTEN SEEK TO SHIFT THEIR ORIGINAL CLAIM INTERPRETATIONS TO ACCOMMODATE THE JUDGE’S VIEWS. THUS, THE PARTIES SEEK TO REVISE EXPERT REPORTS OR REOPEN DISCOVERY TO ACCOUNT FOR THE JUDGE’S INTERPRETATION. THIS MANEUVERING LEADS TO PROCEDURAL BATTLES OVER SURPRISE AND MOTIONS FOR ADDITIONAL TIME TO PREPARE FOR TRIAL. SEE LORAL FAIRCHILD CORP. V. VICTOR CO., 906 F. SUPP. 798 (E.D.N.Y. 1995) (INTERPRETING CLAIMS); LORAL FAIRCHILD CORP. V. VICTOR CO., 911 F. SUPP 76, 80-81 (E.D.N.Y. 1996) (PREVENTING PLAINTIFF FROM CHANGING THEORY OF INFRINGEMENT IN RESPONSE TO CLAIM INTERPRETATION). 5. THE NEW EVIDENCE DILEMMA: AS A RESULT OF THE NEW AND PERHAPS SOMEWHAT UNEXPECTED INTERPRETATION, THE PARTIES SCRAMBLE TO CREATE AND ACQUIRE NEW EVIDENCE FOR THEIR INFRINGEMENT ARGUMENTS. 6. THE LEARNING CURVE PROBLEM: LIKE ALL HUMAN ENDEAVORS, CLAIM INTERPRETATION IS A LEARNING PROCESS. THE TRIAL JUDGE MAKES EVERY EFFORT TO STATE THE PRECISE SCOPE OF THE CLAIMS AT THE CLOSE OF THE INITIAL PROCEEDING, BUT OFTEN, WITH THE ADDITIONAL LEARNING DURING THE INFRINGEMENT TRIAL, REALIZES THAT THE INITIAL INTERPRETATION WAS TOO BROAD OR TOO NARROW IN SOME RESPECTS. THE JUDGE THEN FACES THE DILEMMA OF CHANGING THE RULES IN THE MIDDLE OF THE GAME. 7. THE JUDGE AS A TRIAL ISSUE: WITH THE JUDGE’S CLAIM INTERPRETATION CENTRAL TO THE ISSUES OF INFRINGEMENT, TRIAL COUNSEL WILL TRY TO EXPLOIT THE JUDGE’S STATURE WITH THE JURY TO SHOW THAT THE COURT IS ON THEIR SIDE. 8. MULTIPLE TRIALS, PROBLEM II: IN THE WORDS OF UNITED STATES DISTRICT COURT JUDGE RODERICK MCKELVIE: “[I]N SPITE OF A TRIAL JUDGE’S RULING ON THE MEANING OF DISPUTED WORDS IN A CLAIM, SHOULD A THREE-JUDGE PANEL OF THE FEDERAL CIRCUIT DISAGREE, THE ENTIRE CASE COULD BE REMANDED FOR RETRIAL ON [A] DIFFERENT [CLAIM INTERPRETATION].” ELF ATOCHEM NORTH AM., INC. V. LIBBEY-OWENS-FORD CO., 894 F. SUPP. 844, 857, 37 USPQ2D 1065, 1075 (D. DEL. 1995). TRIAL JUDGES CAN OFTEN ADDRESS EACH OF THE ABOVE WITH CAREFUL CASE MANAGEMENT, BUT AT THE COST OF EXPENDING SCARCE TRIAL COURT RESOURCES. 10 THREE VARIABLES AFFECT THE SETTLEMENT CALCULUS OF EACH PARTY TO LITIGATION: P, THE PROBABILITY OF THE PLAINTIFF OBTAINING DAMAGES; J, THE EXPECTED VALUE OF A JUDGMENT FOR THE PLAINTIFF; AND C, THE COST OF LITIGATION. SEE RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 89-94 (1996). IF P X J (PJ) EXCEEDS C, THEN PLAINTIFF WILL SUE. THE PLAINTIFF VALUES THE CASE AT PJ - C. IF THE DEFENDANT AGREES ON THE VALUES ASSIGNED TO THE VARIABLES, THE SUIT WILL COST HIM PJ + C. THIS ROUGH MODEL POSES AN INTERESTING QUESTION. BECAUSE THE COSTS OF LITIGATION INVARIABLY EXCEED THE COSTS OF SETTLEMENT, WHY DO NOT ALL CASES SETTLE? CHIEF JUDGE POSNER ANSWERS: “[U]NCERTAINTY AS TO OUTCOME IS THE KEY TO THE SETTLEMENT RATE . . . .” ID. AT 90. THIS UNCERTAINTY LEADS EACH PARTY TO OVERESTIMATE ITS CHANCE OF PREVAILING. ACCORDINGLY, EACH PARTY WILL ASSIGN DIFFERENT VALUES TO THE VARIABLES, MOST NOTABLY P, THEREBY DIMINISHING THE LIKELIHOOD OF SETTLEMENT. 11 THIS FIGURE IS BASED ON A SURVEY OF EVERY PATENT DECISION RENDERED BY THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT BETWEEN 5 APRIL 1995 (THE DATE MARKMAN I WAS DECIDED) AND 24 NOVEMBER 1997. A TOTAL OF 246 PATENT CASES, ORIGINATING IN THE BOARD OF PATENT APPEALS AND INTERFERENCES (BPAI), THE DISTRICT COURTS, AND THE COURT OF FEDERAL CLAIMS, WERE EVALUATED. OF THE 246 CASES, 141 CASES EXPRESSLY REVIEWED CLAIM CONSTRUCTION ISSUES. AMONG THESE 141 DECISIONS, THIS COURT REVERSED, IN WHOLE OR IN PART, 54 OR 38.3% OF ALL CLAIM CONSTRUCTIONS. WITH RESPECT TO THE DISTRICT COURT AND COURT OF FEDERAL CLAIMS CASES, THE RATE OF REVERSAL OF CLAIM CONSTRUCTIONS IS 47 OUT OF 126 OR 37.3%. 12 THESE NECESSARY STRICTURES CONTRIBUTE TO THE FEDERAL CIRCUIT’S PERCEPTION OF CLAIM CONSTRUCTION. PRESSURED BY THESE NECESSARY RULES, PARTIES BEFORE THE FEDERAL CIRCUIT STRIVE MIGHTILY TO REDUCE THEIR CASES TO A FEW ISSUES CONTROLLED BY A FEW PASSAGES FROM THE SPECIFICATION OR THE PROSECUTION HISTORY. FOR THESE REASONS, THE APPEAL PROCESS DOES NOT PRESENT A FAIR PICTURE OF THE COMPLEX TASK OF UNTANGLING THE KNOT OF LEGAL AND FACTUAL ISSUES PRESENTED FOR TRIAL. A SEEMINGLY SIMPLE ISSUE OF CLAIM CONSTRUCTION ON APPEAL TAKES ON AN ENTIRELY DIFFERENT COMPLEXION IN ITS PROPER CONTEXT AS ONE TINY FACET OF A MASSIVE CORPUS OF LITIGATION. 13 IN 1993 THE CARNEGIE COMMISSION ON SCIENCE, TECHNOLOGY, AND GOVERNMENT WROTE: THE COURTS' ABILITY TO HANDLE COMPLEX SCIENCE-RICH CASES HAS RECENTLY BEEN CALLED INTO QUESTION, WITH WIDESPREAD ALLEGATIONS THAT THE JUDICIAL SYSTEM IS INCREASINGLY UNABLE TO MANAGE AND ADJUDICATE SCIENCE AND TECHNOLOGY ISSUES. REPORT, MARCH 1993, P. 11.
	AK STEEL V. US With them on the brief was Michael H. With him on the brief were David M. Of counsel on the brief were Stephen J. With him on the brief were Julie . By the revaluation provisions of the Tax Exemption and Reduction Control Act (TERCL) Article 56 2.
	OPINION/ORDER
	OPINION/ORDER This statute provides that the Board shall authorize the construction and operation of a proposed new line
	OPINION/ORDER We will reverse the August 16. Hovsons is a developer of nursing homes and other forms of senior citizen housing. Approximately twenty two (21.96) of the acres are located in Brick Township. The remaining (10.77) acres are in Lakewood Township. The nursing home facility Hovsons has envisioned is intended for persons who will require some form of nursing care for the rest of their lives.
	HIBISCUS ASSOCS. V. BOARD OF TRUSTEES This document was created from RTF source by rtftohtml version 2.7.5 > Hibiscus Assocs. v. HAL and the Guarantors are the plaintiffs in this action. That was negotiated in 1988. MIG is the Pension Fund's investment advisor and manager. HAL was only required to make interest payments on the balance of the loan. The amount of the Guarantors' liability during the construction loan period was $10.6 million (the full amount of the loan). HAL was required to make payments on both the principal and interest of the loan. The Guarantors' liability was to be reduced to $2.12 million. The construction loan period was to last two years. On the second anniversary of the Closing Date) and provided (i) no Event of Default has occurred and no event is occurring which. (iii) all conditions regarding the Construction Loan have been satisfied. Accrued interest and all other sums due under the Loan on the Maturity Date.<p> <p> Loan proceeds were to cover the cost of the land and construction as described in a detailed construction budget provided in the Loan Agreement. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="681"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//apr95/92-2387.opa.html">HIBISCUS ASSOCS. V. BOARD OF TRUSTEES<BR></A><BR> This document was created from RTF source by rtftohtml version 2.7.5 > <title>Hibiscus Assocs. v. HAL and the Guarantors are the plaintiffs in this action. That was negotiated in 1988. MIG is the Pension Fund's investment advisor and manager. HAL was only required to make interest payments on the balance of the loan. The amount of the Guarantors' liability during the construction loan period was $10.6 million (the full amount of the loan). HAL was required to make payments on both the principal and interest of the loan. The Guarantors' liability was to be reduced to $2.12 million. The construction loan period was to last two years. On the second anniversary of the Closing Date) and provided (i) no Event of Default has occurred and no event is occurring which. (iii) all conditions regarding the Construction Loan have been satisfied. Accrued interest and all other sums due under the Loan on the Maturity Date.<p> <p> Loan proceeds were to cover the cost of the land and construction as described in a detailed construction budget provided in the Loan Agreement. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="678"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/97/09/954206P.pdf">OPINION/ORDER</A><BR> He was sentenced to 293 months in prison for the continuing financial crimes enterprise violation. Lefkowitz argues that the evidence was insufficient to convict him of any crime. Lefkowitz was President of Citi Equity Group. Or acquire buildings in which a prescribed percentage of the apartment units are occupied by low income tenants. Money raised from limited partners was the project's equity. Remaining debts to the builder were paid. While CEG obtained permanent financing to replace the construction loan once a building was completed. 000 were unbuilt. Funds from limited partners and FSM investors were first deposited in an operating account for each particular investment. 000 was used to pay Lefkowitz's personal expenses. The black hole was $3. IRS agents traced new partnership deposits that cleared negative balances in the central CEG account and then were used to meet Lefkowitz's personal needs and to fund older projects. This practice was not disclosed to CEG investors. Lefkowitz denies that this was fraudulent. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="669"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2002/11/01-2096.htm">01-2096 -- COUNTY OF SANTA FE V. PUBLIC SERVICE CO. OF NEW MEXICO -- 11/26/2002<BR></A><BR> We have jurisdiction pursuant to 28 U.S.C. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="669"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/05a0780n-06.pdf">OPINION/ORDER</A><BR> Ghassem Oshrieh were associates in a real estate development and home building business. 000.00 was approved and was secured by the 26 acres of land. An appraisal was made. The amount of the loan was $100. 000.00.1 The draws were initiated by Crim's contacting a loan officer at the Bank via phone and requesting a draw of a particular amount. The loan officer then checked the computer system to verify that the funds were available. Because the funds were There were withdrawals of $10. There was also a withdrawal of $20. Nor was any inquiry made into the purpose of the draws or construction progress on the second house. Kinslow determined that a second house was not being built with the funds. All of the aforementioned notes have either been paid or waived by agreement. Conkwright also testified that the intent was to use the money from the loan to build the second house. That he understood that the sole purpose of the loan was for construction of the second house. That he did not change his mind about building the house until about forty days after the loan was obtained. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="669"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/Nov1999/983519.txt">OPINION/ORDER</A><BR> The Township claims that the District Court erred in concluding that its zoning ordinance was impermissibly exclusionary under the Pennsylvania Constitution. We conclude that the Township's ordinance is not invalid under state law or the TCA and will reverse. PCS systems are arranged around service </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="666"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/418CD20A4501BD7288256F63007B5F12/$file/0315584.pdf?openelement">OPINION/ORDER</A><BR> In between the carryover paragraph (which ends with </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="663"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2004/06/03-2016.htm">03-2016 -- VALLEY COMMUNITY PRESERVATION COMMISSION V. MINETA -- 06/23/2004<BR></A><BR> By failing to conduct the necessary reviews and investigations to determine whether the project will entail a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="663"></TD> <TD CLASS="swtitle"><A HREF="http://www.fedcir.gov/opinions/03-1285.pdf">OPINION/ORDER</A><BR> With him on the brief were Robert D. With her on the brief were Hugh L. Of counsel were Paul J. Inc. (collectively Apotex) will not infringe claim 1 of U.S. Because claim 1 of the '723 patent is invalid as anticipated under 35 U.S.C. § 102(b). Curzons's test results established that the new product was the hemihydrous form of PHC (PHC hemihydrate). Ferrosan's original form was anhydrous PHC (PHC anhydrate). The only claim at issue in this case is claim 1. SmithKline alleges that Apotex's proposed drug will infringe claim 1 of the '723 patent. PHC anhydrate the Ferrosan discovery is prior art for the '723 patent. SmithKline asserts that Apotex will infringe by manufacturing PHC anhydrate tablets that necessarily contain. Including cross motions for summary judgment that claim 1 of the '723 patent was invalid (or valid) under 35 U.S.C. § 102(b) for an impermissible public use. Holding that the '723 patent was not invalid for public use under § 102(b). Supp. 2d at The trial record contained uncontested testimony that a PHC anhydrate hemihydrate mixture would need to possess a percentage of PHC hemihydrate in the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="663"></TD> <TD CLASS="swtitle"><A HREF="http://www.fedcir.gov/opinions/03-1285.pdf">OPINION/ORDER</A><BR> With him on the brief were Robert D. With her on the brief were Hugh L. Of counsel were Paul J. Inc. (collectively Apotex) will not infringe claim 1 of U.S. Because claim 1 of the '723 patent is invalid as anticipated under 35 U.S.C. § 102(b). Curzons's test results established that the new product was the hemihydrous form of PHC (PHC hemihydrate). Ferrosan's original form was anhydrous PHC (PHC anhydrate). The only claim at issue in this case is claim 1. SmithKline alleges that Apotex's proposed drug will infringe claim 1 of the '723 patent. PHC anhydrate the Ferrosan discovery is prior art for the '723 patent. SmithKline asserts that Apotex will infringe by manufacturing PHC anhydrate tablets that necessarily contain. Including cross motions for summary judgment that claim 1 of the '723 patent was invalid (or valid) under 35 U.S.C. § 102(b) for an impermissible public use. Holding that the '723 patent was not invalid for public use under § 102(b). Supp. 2d at The trial record contained uncontested testimony that a PHC anhydrate hemihydrate mixture would need to possess a percentage of PHC hemihydrate in the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="663"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2003/08/02-5128.htm">02-5128 -- U.S. CELLULAR TELEPHONE OF GREATER TULSA V. CITY OF BROKEN ARROW OKLAHOMA - - 08/19/2003<BR></A><BR> Concluding that the City's denial violated the Telecommunications Act because it was not supported by </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="660"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/May1997/97a1578p.txt">OPINION/ORDER</A><BR> We have jurisdiction under 28 U.S.C. § 1291. Inc. ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="657"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/mar2001/97-4578.man.html">UNITED STATES V. GILBERT (3/16/2001, NO. 97-4578)<BR></A><BR> The subsequent proceeding would be needless because the order of forfeiture upon which the Government relies is invalid. We affirm the district court's denial of the Government's motion to force the Gilberts to file third party petitions pursuant to 18 U.S.C. § 1963(</SPAN><SPAN STYLE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="657"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//mar2001/97-4578.man.html">UNITED STATES V. GILBERT (3/16/2001, NO. 97-4578)<BR></A><BR> The subsequent proceeding would be needless because the order of forfeiture upon which the Government relies is invalid. We affirm the district court's denial of the Government's motion to force the Gilberts to file third party petitions pursuant to 18 U.S.C. § 1963(</SPAN><SPAN STYLE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="655"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/99/06/982884P.pdf">OPINION/ORDER</A><BR> They concede that the cross appeal will be moot if this court affirms the district court's dismissal and summary judgment decisions. The cross appeal is therefore moot. The specific allegations pertinent to our discussion are found in paragraphs 9 through 32 of the First Amended Complaint. Sheet Metal Workers Local 36 is a member of the St. The Specification stated that all subcontractors were covered by the terms and conditions of the General Contract. One of the companies who submitted a bid for the School Project was Wachter. K.C.'s mechanical subcontracting bid was the lowest responsible mechanical subcontractor bid submitted to Wachter for the School Project. Inc.) were not signatory to an AFL CIO collective bargaining agreement. The bids for the School Project were publicly opened and read aloud on the morning of June 24. Wachter was the low bidder. When Wachter learned that it was the low bidder. The School Board was scheduled to hold a meeting at which it was to vote on the award of the contract for the School Project. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="652"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca10.uscourts.gov/cgi-bin/getopn.pl?OPINION=05-3223.wpd">OPINION/ORDER</A><BR> Claiming that it was entitled to these funds as liquidated damages because of Hutton's delays. 500.00 in liquidated damages to which the City was entitled. (2) that the contract's liquidated damages provision was enforceable. (4) that Hutton was not entitled to prejudgment interest on its damages. We have jurisdiction under 28 U.S.C. 1291 and affirm. Contract and Performance The contract between Hutton and the City is dated March 28. The engineer designated for the project was Allgeier. Rather than specifying when construction was to begin. In no event will the Commencement Date be later than * (See Special Conditions) calendar days after date of approval of the Contract by the [City]. That [Hutton] will not be required to perform any construction on such days when in the judgment of the Engineer snow. The time of completion set out above will be extended if [Hutton] makes a written request therefor to the [City] . . . . Provided that it submitted requests for extensions in writing: <hr> The time for Completion of Construction shall be extended for the period of any reasonable delay which is due exclusively to causes beyond the control and without the fault of [Hutton]. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="649"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/docs/common/opinions/200609/05-1008a.pdf">OPINION/ORDER</A><BR> With him on the briefs were Ian H. With him on the brief were James C. Circuit Judge: CTIAThe Wireless Association ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="649"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/01/04/993122P.pdf">OPINION/ORDER</A><BR> Was organized to build power plants and provide power for its members. Which is the subject of this litigation. The methodology Basin used for determining the cost of AVS II power was set out in Exhibit A of the contract. The Rural Utilities Service ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="646"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2004/08/03-1209.htm">03-1209 -- ELLIOT V. TURNER CONSTRUCTION CO. -- 08/24/2004<BR></A><BR> 1291 and affirm in part and reverse in part. <p> <center>I.</center> <p> Turner Construction was hired as the general contractor for construction of Invesco Field at Mile High Stadium in Denver. The company was required to place a temporary pedestrian bridge across the Platte River to accommodate pedestrian traffic. Elliot testified that his job responsibilities included: <p> go[ing] to a job site . . .and show[ing] the contractor basically how the bridge was put together. How a launch . . . was enacted. What equipment is suggested as far as what you would use to push or launch the bridge with. Making sure that the bridge is put together correctly. Mak[ing] sure that all the bolts are tight and sort of an inspector. Elliot's function was in part as a consultant and in part as an inspector. He testified that as the panels were hooked together. All the bolts were tightened. All the pieces were in the right place facing the right way. He stated that </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="646"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/06a0081p-06.pdf">OPINION/ORDER</A><BR> The bankruptcy court found that the petition was filed in bad faith and awarded JRH costs. I. BACKGROUND We set forth here an abbreviated version of the material events addressed by the bankruptcy court in adjudicating the merits of JRH's claim that Adell's petition for involuntary bankruptcy was in bad faith. Contending that it was only worth $1 million instead of $1.75 million. All of which essentially rested on two allegations: (1) that Shekerjian and JRH had orally told Adell that the land was worth $1. That the home they would construct for him would have a value of $2. Even though they knew that was impossible because there were </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="646"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/031708.P.pdf">OPINION/ORDER</A><BR> That is. Possession before just compensation is determined and paid in a condemnation action. The main question in this appeal is whether a gas company can obtain immediate possession through the equitable remedy of a preliminary injunction. I. East Tennessee Natural Gas Company (ETNG) is a regional gas transportation company. The procedure for obtaining a certificate from FERC is set forth in the NGA. (2) a statement of the facts showing why the project is required. Notice of the application is filed in the Federal Register. Public comment and protest is allowed. At the end of the process FERC issues a certificate if it finds that the proposed project </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="646"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2004/08/02-4149.htm">02-4149 -- SKULL VALLEY BAND OF GOSHUTE INDIANS V. NIELSON -- 08/04/2004<BR></A><BR> Appeal the district court's ruling that the state's statutes regulating the storage and transportation of spent nuclear fuel are preempted by federal law. <u>See</u> <u>Skull Valley Band of Goshute Indians v. The Utah officials argue that the district court should not have reached the merits of this dispute because (1) the plaintiffs who challenge the statutes </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="643"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/aug98/97-2664.man.html">ROBERTS & SCHAEFER CO. V. HARDAWAY CO. (8/31/1998, NO. 97-2664)<BR></A><BR> We also conclude that the damages award to Hardaway is not in error. We affirm the judgment.</P> <P><CENTER>I.</CENTER> </P> <P><CENTER>A.</CENTER> </P> <P> A detailed review of the facts is necessary to understand our holding. Construction was to proceed on a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="643"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199907/98-1277a.txt">OPINION/ORDER</A><BR> With him on the briefs was John N. With him on the brief were Linda Sher. With him on the brief was Travis J. I. Warshawsky (the Company) sells automobile parts and accessories and is currently constructing a warehouse and mail order facility in LaSalle. The union stopped later that day after being told that Automotion was not yet working at the site. That any subsequent picketing of Automotion should be con ducted only when Automotion was working on the site: Mon day through Friday from 4 p.m. to 6 a.m. Various union agents stationed themselves in close proximity to the LaSalle site on a road that was used primarily by persons going to and from the site. The site itself was not open to members of the general public. IS DESTROYING THE STANDARD OF WAGES FOR HARD WORKING UNION MEMBERS AUTOMOTION. Iron Workers Local 386 is currently engaged in a labor dispute concerning the failure of Automotion. We are appealing only to the general public. We are not seeking any person to cease work or to stop making deliveries. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="643"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//aug98/97-2664.man.html">ROBERTS & SCHAEFER CO. V. HARDAWAY CO. (8/31/1998, NO. 97-2664)<BR></A><BR> We also conclude that the damages award to Hardaway is not in error. We affirm the judgment.</P> <P><CENTER>I.</CENTER> </P> <P><CENTER>A.</CENTER> </P> <P> A detailed review of the facts is necessary to understand our holding. Construction was to proceed on a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="643"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/98opinions/98-1277a.html">WARSHAWSKY & CO V. NLRB<BR></A><BR> With <p> him on the briefs was <i>John N. With him on the <p> <p> <p> brief were <i>Linda Sher</i>. McGann</i> argued the cause for intervenor. <p> With him on the brief was <i>Travis J. We grant the petition.<p> <p> <b>I</b>. <p> <p> Warshawsky (the Company) sells automobile parts and <p> accessories and is currently constructing a warehouse and <p> mail order facility in LaSalle. The union stopped later that day after being told <p> that Automotion was not yet working at the site. <p> <p> <p> that any subsequent picketing of Automotion should be con <p> ducted only when Automotion was working on the site: Mon <p> day through Friday from 4 p.m. to 6 a.m. Various union <p> agents stationed themselves in close proximity to the LaSalle <p> site on a road that was used primarily by persons going to <p> and from the site. The site itself was not open to members of <p> the general public. INC. <p> IS <u>DESTROYING</u> <p> THE STANDARD OF <p> WAGES FOR <p> HARD WORKING <p> UNION MEMBERS <p> <p> <p> AUTOMOTION. INC.<p> PAYS SUBSTANDARD<p> WAGES AND FRINGE BENEFITS.<p> IGNORING THE AREA STANDARDS<p> THREATENS THE EFFORTS AND SACRIFICES<p> OF ALL UNION MEMBERS.<p> <p> <p> <p> Iron Workers Local 386 is currently engaged in a labor dispute concerning the<p> failure of Automotion. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="640"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTE5NDktY3Zfb3BuLnBkZg==/05-1949-cv_opn.pdf">OPINION/ORDER</A><BR> Circuit Judge: A perceptive governor once noted: </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="640"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.villanova.edu/locator/3d/July2004/024038p.pdf">OPINION/ORDER</A><BR> Which is located approximately 5.25 miles from the DuboisJefferson County Airport. Was intended to accept municipal waste primarily from outof state producers. Eagle began to apply to the Pennsylvania Department of Environmental Protection (hereinafter </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="640"></TD> <TD CLASS="swtitle"><A HREF="http://www.fedcir.gov/opinions/04-1246.pdf">OPINION/ORDER</A><BR> With him on the brief were Monte M. Of counsel on the brief were N. Of counsel were Erin M. With him on the brief was Jolynn M. I. BACKGROUND Rhodia is an international chemical company that is the assignee of United States Patent Number 6. Only one of the product claims of the '234 patent and none of its process claims were asserted in the instant litigation. Micropearl silica is used as a filler to reinforce elastomeric products such as automobile tires and as a carrier in the nutraceutical industry. The initial application that led to the '234 patent was filed in April 1980.1 Conventional elastomeric fillers in use at that time. Were inherently dusty and did not flow easily. The '234 patent was designed as an improvement to granulated silica and silica powders. Was the culmination of eleven continuation applications filed between October 23. The underlined terms are disputed by the parties. The test results were designed to show ways that a person of ordinary skill could understand or comprehend the advantages of the claimed invention and differentiate it from the prior art. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="634"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/19972664.OPN.pdf">OPINION/ORDER</A><BR> We also conclude that the damages award to Hardaway is not in error. A detailed review of the facts is necessary to understand our holding. Construction was to proceed on a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="634"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/19972664.MAN.pdf">OPINION/ORDER</A><BR> We also conclude that the damages award to Hardaway is not in error. A detailed review of the facts is necessary to understand our holding. Construction was to proceed on a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="634"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/96opinions/96-1526.html">HARRIS CORP. V. IXYS CORP.<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="634"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/03opinions/03-1277.html">EMPIRE ENERGY MANAGEMENT SYSTEMS, INC. V. JAMES G. ROCHE, SECRETARY OF THE AIR FORCE<BR></A><BR> Argued for appellant.<span style='mso spacerun:yes'> </span>With him on the brief were <u>Virginia A. Argued for appellee.<span style='mso spacerun:yes'> </span>With him on the brief were <u>Robert D. Empire and the Air Force entered into a contract under which Empire was to provide cogeneration<a style='mso footnote id:ftn1' href= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="631"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/991402.P.pdf">OPINION/ORDER</A><BR> Which was established in the 1930s </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="631"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/200117064.pdf">OPINION/ORDER</A><BR> Inc. were convicted of a variety of federal offenses stemming from an affirmative action fraud scheme they perpetrated regarding federally funded road construction projects. I. Because the defendants are challenging their convictions. The FDOT was contractually obligated to ensure that at least 12% of the USDOT's funds ultimately went to 2 </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="628"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/ea50059bc5df2783882569520074e699/166f48ff79457fb188256a8700551e21/$FILE/0015136.pdf">OPINION/ORDER</A><BR> Circuit Judge: The question we are presented with in this appeal is whether a sidewalk constructed on private property to replace a public sidewalk. Is a public forum subject to the protections of the First Amendment. Seeking a declaratory judgment that the replacement sidewalk constructed on its property is not a public forum and an injunction requiring the County to recognize and enforce the Venetian's right to exclude labor union demonstrators from the sidewalk. We have jurisdiction under 28 U.S.C. § 1291. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY The Venetian Casino Resort is a large hotel and casino complex located on the former site of the Sands Casino on 8951 Las Vegas Boulevard South </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="628"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/05a0771n-06.pdf">OPINION/ORDER</A><BR> Local 372 non union carpenters who were current or potential customers of the bank. When the Union determined that in fact non union carpenters were working on the project. Therefore was responsible for the subcontracting of the non union carpenters. The arbitration panel was therefore </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="628"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/200511052.pdf">OPINION/ORDER</A><BR> The licensee must obtain two separate FCC Susquehanna also contends the district court should have granted it summary judgment under the equitable doctrine of judicial estoppel. In the event the [FCC] grants a Construction Permit ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="628"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/166F48FF79457FB188256A8700551E21/$file/0015136.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: The question we are presented with in this appeal is whether a sidewalk constructed on private property to replace a public sidewalk. Is a public forum subject to the protections of the First Amendment. Seeking a declaratory judgment that the replacement sidewalk constructed on its property is not a public forum and an injunction requiring the County to recognize and enforce the Venetian's right to exclude labor union demonstrators from the sidewalk. We have jurisdiction under 28 U.S.C. § 1291. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY The Venetian Casino Resort is a large hotel and casino complex located on the former site of the Sands Casino on 8951 Las Vegas Boulevard South </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="628"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F0713705B53E7E1F88256E5A00707BE6/$file/0015136.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: The question we are presented with in this appeal is whether a sidewalk constructed on private property to replace a public sidewalk. Is a public forum subject to the protections of the First Amendment. Seeking a declaratory judgment that the replacement sidewalk constructed on its property is not a public forum and an injunction requiring the County to recognize and enforce the Venetian's right to exclude labor union demonstrators from the sidewalk. We have jurisdiction under 28 U.S.C. § 1291. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY The Venetian Casino Resort is a large hotel and casino complex located on the former site of the Sands Casino on 8951 Las Vegas Boulevard South </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="628"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/ea50059bc5df2783882569520074e699/f0713705b53e7e1f88256e5a00707be6/$FILE/0015136.pdf">OPINION/ORDER</A><BR> Circuit Judge: The question we are presented with in this appeal is whether a sidewalk constructed on private property to replace a public sidewalk. Is a public forum subject to the protections of the First Amendment. Seeking a declaratory judgment that the replacement sidewalk constructed on its property is not a public forum and an injunction requiring the County to recognize and enforce the Venetian's right to exclude labor union demonstrators from the sidewalk. We have jurisdiction under 28 U.S.C. § 1291. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY The Venetian Casino Resort is a large hotel and casino complex located on the former site of the Sands Casino on 8951 Las Vegas Boulevard South </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="626"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=94-1581.01A">OPINION/ORDER</A><BR> A firm that was both his employer and the charterer of the barge. A K is immune from tort actions brought by covered employees like Morehead. As the bare boat charterer of the barge on which Morehead was injured. A K is deemed also to be the statutory vessel owner. It was in this capacity that A K was sued. 2 2 The case raises difficult questions of first impression in this circuit as to the liability of a so called dual capacity employer under the LHWCA. Or rather was in its capacity as </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="626"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA0LTU5NjgtY3Zfb3BuLnBkZg==/04-5968-cv_opn.pdf">OPINION/ORDER</A><BR> That motion was granted. The District Court properly dismissed claims based on plaintiffs' theories that the preliminary agreement is enforceable as to the ultimate contractual goal and that it forms a joint venture. Is CEO of Plaintiff Appellant Jeffrey M. Is owner and President of Defendant Appellee Tracto Equipment. We hold that the grant of summary judgment as to Tracto was premature and therefore vacate that portion of the District Court Order. While the preliminary agreement is not enforceable as to the ultimate contractual goal contemplated in the document. It is enforceable as an obligation between the parties to negotiate in good faith within the framework of the agreement. 04 5968 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 In March 2000 the Jay Street Property was in use as a parking lot and was subject to zoning limitations that made it unsuitable for substantial commercial or residential development. Cara is to </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="626"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/01/04/001754P.pdf">OPINION/ORDER</A><BR> I. Cragun's Pine Beach Resort is a vacation resort near Brainerd. The trench was about four and one half feet deep. United States District Judge for the District of Minnesota. 2 2 were no warnings that the pathway was unsafe. Holding that Minnesota's two year statute of limitations for actions to recover damages for injuries arising out of an unsafe condition of an improvement to real property barred Lederman's claim because the trench was an improvement to real property. Summary judgment is appropriate when the evidence. Demonstrates that there is no genuine issue of material fact. That the moving party is entitled to judgment as a matter of law. If Minnesota law is ambiguous. A twoyear limitations period applies to actions for injuries arising out of </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="623"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTM4MjMtY3YgdyBFcnJhdGEucGRm/05-3823-cv%20w%20Errata.pdf">OPINION/ORDER</A><BR> The district court lacked jurisdiction because the action was not brought as an appeal of an agency decision pursuant to IGRA § 2714. We hold that the district court was without jurisdiction to entertain the action and we affirm the dismissal. The other half shall be paid into the Treasury for the use of the Indian or tribe by or for whom it was so paid. 3 Management Company ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="623"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTM4MjMtY3Zfb3BuLnBkZg==/05-3823-cv_opn.pdf">MICROSOFT WORD - 05 CV 3823 U.S. V. ST. REGIS MOHAWK FINAL.DOC<BR></A><BR> The district court lacked jurisdiction because the action was not brought as an appeal of an agency decision pursuant to IGRA § 2714. We hold that the district court was without jurisdiction to entertain the action and we affirm the dismissal. The other half shall be paid into the Treasury for the use of the Indian or tribe by or for whom it was so paid. 3 Management Company ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="623"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTM4MjMtY3Zfb3BuLnBkZg==/05-3823-cv_opn.pdf">MICROSOFT WORD - 05 CV 3823 U.S. V. ST. REGIS MOHAWK FINAL.DOC<BR></A><BR> The district court lacked jurisdiction because the action was not brought as an appeal of an agency decision pursuant to IGRA § 2714. We hold that the district court was without jurisdiction to entertain the action and we affirm the dismissal. The other half shall be paid into the Treasury for the use of the Indian or tribe by or for whom it was so paid. 3 Management Company ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="617"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199712/96-1430a.txt">OPINION/ORDER</A><BR> Was on the brief. DePont were on the brief for intervenors. Noting that </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="617"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/BF21423C5BDAA1D788256F0300576EF8/$file/0315584.pdf?openelement">OPINION/ORDER</A><BR> Grand Canyon alleges that Tucson Electric's 1977 construction permit for Springerville was invalid for several related reasons and. Grand Canyon is a non profit environmental organization dedicated to conserving the natural resources of the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="617"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/04/08/024156P.pdf">OPINION/ORDER</A><BR> Round numbers are utilized where they do not affect the analysis. 2 2 1 The district court3 ruled the parties abandoned the contract. Which were to hold the paper production equipment. Because they were to house the actual manufacturing plants. Buildings 51 and 52 were apparently the most important and costly. The four other buildings were warehouses or similar facilities. 3 5 4 3 OBG's proposal also contained a section entitled Commercial and Technical Clarifications and Exemptions. One commercial clarification was OBG's request the Joint Venture eliminate the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="617"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/5005B5A345F5EE6C88256D3A005439D9/$file/0135028.pdf?openelement">OPINION/ORDER</A><BR> The United States alleging they were harmed by the Cushman Hydroelectric Project ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="614"></TD> <TD CLASS="swtitle"><A HREF="ftp://opinions.ca5.uscourts.gov/unpub/02/02-30387.0.wpd.pdf">OPINION/ORDER</A><BR> Circuit Judges. 1 PER CURIAM:* These consolidated declaratory judgment actions sounding in diversity were brought by the primary and excess general liability insurers of a Louisiana shipbuilding company. The insurers seek a declaration that they are not obliged to pay certain repair costs or loss of profits or use paid by the shipbuilder to its customers. The Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. A liftboat is a supply vessel equipped with three or four hydraulic </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="611"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/1998/07/97-1418.htm">97-1418 -- ASSOCIATIONS WORKING FOR AURORA'S RESIDENTIAL ENVIRONMENT V. COLORADO DEPT. OF TRANSPORTATION -- 07/27/1998<BR></A><BR> The Contractor was to provide </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="611"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/07/08/062433P.pdf">OPINION/ORDER</A><BR> Factual Background HOK Sport is a subsidiary of Hellmuth. Krause is the president and chief executive officer of Kum & Go. The Menace is a minor league soccer club located in Urbandale. The City of Urbandale would have owned the stadium and received a nominal rent payment. Would have operated the stadium as a for profit business. Would have paid rent to Calcio. TSF was to </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="611"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=98-1331.01A">OPINION/ORDER</A><BR> With whom Goldman Antonetti & C¢rdova was on brief. With whom Jos‚ Enrique Otero was on joint brief. Before the Court is plaintiff appellant Puerto Rico Aqueduct and Sewer Authority's ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="611"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/994654.U.pdf">OPINION/ORDER</A><BR> Unpublished opinions are not binding precedent in this circuit. Arguing that his guilty plea was unknowing and involuntary because the district court failed to inform him that the Government must prove materiality for the bank and wire fraud charges. Because we find that the district court's error in failing to inform Strassini that materiality was an element of bank and wire fraud neither affected his substantial rights nor seriously affected the fairness. (6) his 1994 adjusted gross income was approximately $96. 500 check into his business account at NationsBank that was drawn on his MBNA America Visa credit card. Strassini made several withdrawals from the account before the check was returned for insufficient funds. (4) Elite Homes was worth $937. The proceeds of which were deposited into his personal checking accounts. Strassini stipulated that there was a factual basis for his guilty plea and that presentation of the factual basis was deferred until sentencing. Informed Strassini of the crimes to which he was pleading guilty by explaining the elements of bank fraud. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="611"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/19954351.OPA.pdf">OPINION/ORDER</A><BR> The district court held that there was no We affirm in part. Approximately 8.5 acres were zoned C 1A. While Corn's adjacent land was zoned for residential use. The district court found that Corn did not prove that these expenditures were aimed at any specific use of the land. Both uses were permitted on land zoned C 1 and. The study was to address the propriety of situating commercially zoned property adjacent to residential property. The moratorium was to last for 150 days. It eventually was extended to last almost a year. The record is ambiguous as to whether the moratorium applied to Corn's property for its entire duration. Was re zoned B 3 by Ordinance No. 549 within a month of the moratorium's inception. The parties have proceeded on this appeal under the assumption that the moratorium nevertheless applied to the Parcel for its duration and prevented Corn from building anything on the Parcel during that time. It is clear that once the moratorium expired on July 4. The state circuit court found that Corn had </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="611"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/sept96/95-4351.opa.html">CORN V. CITY OF LAUDERDALE LAKES<BR></A><BR> This document was created from RTF source by rtftohtml version 2.7.5 > <title>Corn v. The district court held that there was no taking of Corn's property. Approximately 8.5 acres were zoned C 1A. While Corn's adjacent land was zoned for residential use.<p> Between 1966 and 1977. The district court found that Corn did not prove that these expenditures were aimed at any specific use of the land. Both uses were permitted on land zoned C 1 and. The study was to address the propriety of situating commercially zoned property adjacent to residential property. The moratorium was to last for 150 days. It eventually was extended to last almost a year.<p> The record is ambiguous as to whether the moratorium applied to Corn's property for its entire duration. Was re zoned B 3 by Ordinance No. 549 within a month of the moratorium's inception. The parties have proceeded on this appeal under the assumption that the moratorium nevertheless applied to the Parcel for its duration and prevented Corn from building anything on the Parcel during that time. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="611"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//sept96/95-4351.opa.html">CORN V. CITY OF LAUDERDALE LAKES<BR></A><BR> This document was created from RTF source by rtftohtml version 2.7.5 > <title>Corn v. The district court held that there was no taking of Corn's property. Approximately 8.5 acres were zoned C 1A. While Corn's adjacent land was zoned for residential use.<p> Between 1966 and 1977. The district court found that Corn did not prove that these expenditures were aimed at any specific use of the land. Both uses were permitted on land zoned C 1 and. The study was to address the propriety of situating commercially zoned property adjacent to residential property. The moratorium was to last for 150 days. It eventually was extended to last almost a year.<p> The record is ambiguous as to whether the moratorium applied to Corn's property for its entire duration. Was re zoned B 3 by Ordinance No. 549 within a month of the moratorium's inception. The parties have proceeded on this appeal under the assumption that the moratorium nevertheless applied to the Parcel for its duration and prevented Corn from building anything on the Parcel during that time. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="608"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200206/00-1548a.txt">OPINION/ORDER</A><BR> With her on the briefs was Berne C. Was on the brief for amicus curiae U.S. With her on the brief were John C. With him on the brief was Michael Schneiderman. Mattox were on the brief for amicus curiae Continental Airlines Corporation. Olmsted Falls contends that the FAA's approval was arbi trary and capricious. Olmsted Falls also argues that a supplemental environmental impact statement is required under NEPA. Because the FAA's approval of the Record of Decision was neither arbitrary nor capricious. Because no further documentation is required under NEPA. I. Background Cleveland Hopkins International Airport ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="608"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/00opinions/00-1548a.html">CITY OF OLMSTED FALLS, V. FAA<BR></A><BR> Lichman argued the cause for petitioner.<span style= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="608"></TD> <TD CLASS="swtitle"><A HREF="http://www.fedcir.gov/opinions/04-1564.pdf">OPINION/ORDER</A><BR> With him on the brief was Amber Hatfield Rovner. Of counsel was Douglas A. With him on the brief were Michael A. Wherein each said element type and its associated attributes are subject to pre defined constraints providing element characteristics in conformance with said uniform and aesthetically pleasing look and feel for said interface screens. Whereby the aggregate layout of said plurality of selected elements on said interface screen under construction will be aesthetically pleasing and functionally operable for effective delivery of information to a kiosk user. At issue in this appeal is the definiteness of </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="605"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=91-1193.01A">OPINION/ORDER</A><BR> Hoag & Eliot were on brief for appellants. P.C. were on brief for appellee. 1 1 *Of the District of Massachusetts. One of which was to confirm that S&S could assign its air quality and construction permits to Thermo. Thermo was to pay an additional $900. Which would have changed key items in the January letter contract. This rule is intended in part </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="602"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca7.uscourts.gov/op/01/01-3826.PDF">OPINION/ORDER</A><BR> Which was responsible for the redevelopment. Levin was responsible for finishing the remainder of the redevelopment plan. A synopsis of the agreement is as follows: Levin was required to purchase land obtained by the DRA and construct buildings on it. Plans were behind schedule and the parcel sizes were constantly being changed by the DRA. Levin objected to the closing date because there was. The DRA refused to extend the closing date and notified Levin that it was in breach but took no other action. A major goal of the redevelopment project was to find an entity to serve as an anchor tenant. The DeForest Library Board was willing to sign the agreement. That there was a secret meeting between the DeForest Library Board and the DRA in which the DRA suggested that the Board delay the library development plan. The DRA contends that Levin's construction manager was present and thus the meeting was not secret. The Liaison Requirement One of the main disputes in this case is the liaison requirement under Section 2.5 of the contract. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="602"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/8518BA406AF34AD988256A53005D02FB/$file/9930213.pdf?openelement">OPINION/ORDER</A><BR> Among the thirteen defendants there were sixteen counts and over fifty charged offenses. Was designed to fund the construction of private homes for low income Native Americans. That federal money was to be supplemented by land donations from the Tribe. The application was eventually approved. Other evidence presented at trial suggested that the funds would have come from the Tribe itself. Only about fifty homes were built. All of the HUD money was spent. The process was plagued with difficulty and controversy. Blaze's application was deficient. Was successful only because it was muscled through by a HUD supervisor. Was in cahoots with Blaze. Lewis was removed from supervision of the program. The situation was reported to the Office of the Inspector General. Although the money on these projects was typically distributed only as reimbursement. The Tribe sought money to pay for land that it had promised to donate. 2 There was ongoing adjustment to the amount of funding and the number of units to be built. 6387 The housing lottery used to distribute the homes was attacked as </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-6.gif" ALT="602"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/BD9EA1C3BF89687388256E5A00707B52/$file/9930213.pdf?openelement">OPINION/ORDER</A><BR> Among the thirteen defendants there were sixteen counts and over fifty charged offenses. Was designed to fund the construction of private homes for low income Native Americans. That federal money was to be supplemented by land donations from the Tribe. The application was eventually approved. Other evidence presented at trial suggested that the funds would have come from the Tribe itself. Only about fifty homes were built. All of the HUD money was spent. The process was plagued with difficulty and controversy. Blaze's application was deficient. Was successful only because it was muscled through by a HUD supervisor. Was in cahoots with Blaze. Lewis was removed from supervision of the program. The situation was reported to the Office of the Inspector General. Although the money on these projects was typically distributed only as reimbursement. The Tribe sought money to pay for land that it had promised to donate. 2 There was ongoing adjustment to the amount of funding and the number of units to be built. 6387 The housing lottery used to distribute the homes was attacked as </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="599"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/docs/common/opinions/200707/05-1299a.pdf">OPINION/ORDER</A><BR> With him on the briefs was C. With her on the 2 brief were John S. With her on the brief were Jason B. Were on the brief for intervenor State of Alaska. Which are developing a proposal to build a natural gas pipeline from the North Slope of Alaska to the contiguous United States. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="599"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/98opinions/98-7209b.html">DISTRICT INTOWN PROPERTIES LIMITED PARTNERSHIP V. D.C.<BR></A><BR> Christensen argued the cause for appellants. </p> <p>With him on the briefs was Stacey L. With him on the </p> <p>brief were Jo Anne Robinson. Nelson were on the brief for amicus </p> <p>curiae The National Trust for Historic Preservation and D.C. </p> <p>Preservation League.</p> <p>Before: Edwards. All nine lots were declared </p> <p>historic landmarks. </p> <p>finding that the construction was incompatible with the prop </p> <p>erty's landmark status. The District Court found that there was no categori </p> <p> . The property as it was </p> <p>originally purchased in 1961 and as it was held for 27 years </p> <p>prior to the 1988 subdivision. When the proper </p> <p>ty is viewed as a single parcel. There is no doubt that it has </p> <p>not been rendered valueless. Even if each subdivided </p> <p>parcel is considered separately. The record </p> <p>here does not show that District Intown's investment backed </p> <p>expectations were disappointed. This is not surprising. Be </p> <p>cause District Intown could not have had any reasonable </p> <p>investment backed expectations of development given the </p> <p>background regulatory structure at the time of subdivision. </p> <p>Accordingly. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="599"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199912/98-7209a.txt">OPINION/ORDER</A><BR> With him on the briefs was Stacey L. With him on the brief were Jo Anne Robinson. Nelson were on the brief for amicus curiae The National Trust for Historic Preservation and D.C. All nine lots were declared historic landmarks. Finding that the construction was incompatible with the prop erty's landmark status. The District Court found that there was no categori cal taking under Lucas. The property as it was originally purchased in 1961 and as it was held for 27 years prior to the 1988 subdivision. When the proper ty is viewed as a single parcel. There is no doubt that it has not been rendered valueless. Even if each subdivided parcel is considered separately. The record here does not show that District Intown's investment backed expectations were disappointed. This is not surprising. Be cause District Intown could not have had any reasonable investment backed expectations of development given the background regulatory structure at the time of subdivision. The property was known as Cathedral Mansions South and consisted of an apartment building and adjacent landscaped lawns. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="599"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199912/98-7209b.txt">OPINION/ORDER</A><BR> With him on the briefs was Stacey L. With him on the brief were Jo Anne Robinson. Nelson were on the brief for amicus curiae The National Trust for Historic Preservation and D.C. All nine lots were declared historic landmarks. Finding that the construction was incompatible with the prop erty's landmark status. The District Court found that there was no categori cal taking under Lucas. The property as it was originally purchased in 1961 and as it was held for 27 years prior to the 1988 subdivision. When the proper ty is viewed as a single parcel. There is no doubt that it has not been rendered valueless. Even if each subdivided parcel is considered separately. The record here does not show that District Intown's investment backed expectations were disappointed. This is not surprising. Be cause District Intown could not have had any reasonable investment backed expectations of development given the background regulatory structure at the time of subdivision. The property was known as Cathedral Mansions South and consisted of an apartment building and adjacent landscaped lawns. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="599"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/98opinions/98-7209a.html">DISTRICT INTOWN PROPERTIES LIMITED PARTNERSHIP V. D.C.<BR></A><BR> Christensen argued the cause for appellants. </p> <p>With him on the briefs was Stacey L. With him on the </p> <p>brief were Jo Anne Robinson. Nelson were on the brief for amicus </p> <p>curiae The National Trust for Historic Preservation and D.C. </p> <p>Preservation League.</p> <p>Before: Edwards. All nine lots were declared </p> <p>historic landmarks. </p> <p>finding that the construction was incompatible with the prop </p> <p>erty's landmark status. The District Court found that there was no categori </p> <p> . The property as it was </p> <p>originally purchased in 1961 and as it was held for 27 years </p> <p>prior to the 1988 subdivision. When the proper </p> <p>ty is viewed as a single parcel. There is no doubt that it has </p> <p>not been rendered valueless. Even if each subdivided </p> <p>parcel is considered separately. The record </p> <p>here does not show that District Intown's investment backed </p> <p>expectations were disappointed. This is not surprising. Be </p> <p>cause District Intown could not have had any reasonable </p> <p>investment backed expectations of development given the </p> <p>background regulatory structure at the time of subdivision. </p> <p>Accordingly. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="597"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/924A93785E9B655988256FBD005FBEB6/$file/0316759.pdf?openelement">OPINION/ORDER</A><BR> MetroPCS alleged that the Board's decision (1) was not </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="597"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/94opinions/94-1368.html">LAITRAM CORP. V. NEC CORP.<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="597"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/1998/03/96-2133.htm">96-2133 -- BAKER V. FLINT ENGINEERING & CONSTRUCTION CO. -- 03/06/1998<BR></A><BR> Circuit Judge. <p> <hr align= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="597"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/docs/common/opinions/200304/01-5373a.pdf">OPINION/ORDER</A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="597"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/C4BE7A8AB001A8DD88256D570070C5C5/$file/0057066.pdf?openelement">OPINION/ORDER</A><BR> The importance of which is driven home by the somewhat opaque issue we tackle in this case: whether a South Lake Tahoe redevelopment project was </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="591"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/docs/common/opinions/200310/02-7016a.pdf">OPINION/ORDER</A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="591"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/02/12/012957P.pdf">OPINION/ORDER</A><BR> We hold that the District Court was correct in using the cost of completion of the permanent casino as the measure of damages for the breach of contract and awarding interest on the judgment. Turn Key was to manage the casino for five years in return for a share of the casino's profits after deducting the cost of building the casino. The contract was submitted to the National Indian Gaming Commission in late November of 1994 for approval. The Management Agreement was approved by the Commission a year later. The Tribe was liable only for the first $4. Turn Key realized that the project was going to cost $1. The Tribe announced that it was treating the contract as broken. Specifically that it was entitled to reimbursement of certain costs either under the Management Agreement or on an unjust enrichment theory. The Tribe was awarded $1. Turn Key was awarded $1. On the ground that those expenses were incurred under a separate contract. Is the measure of damages properly applied on the Tribe's counterclaim. It will be recalled that the counterclaim sought damages for Turn Key's breach of the Management Agreement. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="591"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/06a0088p-06.pdf">OPINION/ORDER</A><BR> Plaintiff appellant is a company that bid on two public construction projects. DSM submitted a bond only in the contract amount (that is to say. No one appears to have noticed the discrepancy in the amount of the bond at the time. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="591"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/dec99/92-2929.ma2.html">UNITED STATES V. NEDER (12/10/1999, NO. 92-2929)<BR></A><BR> Circuit Judge:</P> <P><CENTER>ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES</CENTER> </P> <P> This case is before us on remand from the Supreme Court. Was harmless error.<A HREF= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="591"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//dec99/92-2929.ma2.html">UNITED STATES V. NEDER (12/10/1999, NO. 92-2929)<BR></A><BR> Circuit Judge:</P> <P><CENTER>ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES</CENTER> </P> <P> This case is before us on remand from the Supreme Court. Was harmless error.<A HREF= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="591"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=02-2658.01A">OPINION/ORDER</A><BR> Were on brief. Cruzado was convicted of the following charges: one count of embezzlement from a program receiving federal funds. The sentences were to run concurrently with each other. He also argues that his sentence was erroneously calculated. We reserve a fuller discussion of the facts for later sections to which they are particularly relevant.</SPAN></P> <P><SPAN STYLE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="582"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/03/02/026057P.pdf">OPINION/ORDER</A><BR> The Hartzlers escrowed certain funds and Wiley Construction was authorized to draw on the funds to make payment upon any construction agreement addenda. The contract price was subject to additions and deductions by Change Order. That the Hartzlers were not charged a fixed fee because of the uniqueness. 2003. 2 1 The Hartzlers argue the debtor owns 100% of Wiley Construction. 2 The Hartzlers allege that Wiley Construction was not properly performing its duties as provided in the construction agreement because there were significant delays and an insufficient work force on the job site. The Hartzlers also suspected that Wiley Construction was exceeding the 12% mark up. The Hartzlers have alleged that the debtor. The Hartzlers maintain that the parties have exchanged Rule 26 disclosures. Creditors have served written discovery. Depositions of fact witnesses have commenced. The debtor filed a notice of appeal on The allegations above have been embodied in an Amended Complaint which asserts numerous causes of action including fraud. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="579"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/docs/common/opinions/200608/04-1309a.pdf">OPINION/ORDER</A><BR> Lamboley were on brief. United States Department of Justice were on brief. Bauser were on the brief for amicus curiae 2 Nuclear Energy Institute. Nuclear technology is used in energy production. Those advances have come at a price the waste that is the inevitable byproduct. The consensus is that the waste should be stored in an underground repository to be located at Yucca Mountain. Nevada asks us to review both the Final Environmental Impact Statement (FEIS) and that portion of the Record of Decision (ROD) the Department of Energy (DOE or Department) issued governing the Senior Circuit Judge Edwards was in regular active service at the time of oral argument. 1 3 transportation of nuclear waste from the production sources to Yucca. Nevada alleges the FEIS is procedurally flawed and therefore violates the National Environmental Policy Act ( NEPA). We conclude that some of Nevada's claims are unripe for review and the remaining claims are without merit. The DOE is responsible for the development and operation of the repository once the Nuclear Regulatory Commission (NRC) issues a license for the project under the Atomic Energy Act. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="579"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDAzLTkwMzhfb3BuLnBkZg==/03-9038_opn.pdf">OPINION/ORDER</A><BR> The areas to be inspected were a residential dock and adjacent areas located on tidal wetlands off the rear portion of Palmieri's backyard. Palmieri's claim is one essentially sounding in trespass quare clausum fregit that has escalated into a constitutional claim of Fourth Amendment violations only because the trespassers were representatives of a state government regulatory agency. Entry of these state actors was responsive to Palmieri's desire to obtain a necessary permit to conduct construction work on his property. That the agents were dispatched by Palmieri within minutes of their entry and that no damage was done might have justified the disposition of this case by application of the maxim de minimis non curat lex. Because of the 1 John Doe #1 is presumably the intern who accompanied Lynch on her inspection. We are constrained to undertake the more elaborate analysis that follows. The property is situated on Long Island's Great South Bay and encompasses both New York State regulated tidal wetlands and a regulated adjacent area. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="579"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/031322.P.pdf">OPINION/ORDER</A><BR> Line 1 </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="576"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/01/06/001050P.pdf">OPINION/ORDER</A><BR> Consolidated with their petition is the separate petition of the Aircraft Owners and Pilots Association. I. The Richards Gebaur Airport was built in 1941 on land owned by the City of Kansas City. Losses exceeded $18 million and were subsidized by the city's two commercial airports. The airport's losses were projected to continue at more than $1.5 million annually. The FAA found that although the facility was maintaining operation as a general aviation airport. It was able to do so only at substantial losses which were heavily subsidized by Kansas City's other commercial airports. The FAA found that this financial burden was not necessary in a metropolitan area served by several other airports that remain available to general aviation. It would deposit all net </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="576"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199907/95-1585a.txt">OPINION/ORDER</A><BR> With them on the joint briefs were Russell H. With her on the brief were Joel I. The peti tioners contend the later decision was arbitrary and capri cious. SMR licenses have increas ingly been used to provide cellular and data transmission services over a wide area. Few if any of the individuals who obtained SMR licenses with the help of an application mill intended to build transmission facilities or were even capable of doing so. Many of the application mills' customers lost their licenses and others were in jeopardy of losing them. He also took the position that receivership licensees who had voluntarily can celed their licenses were entitled to the benefit of an extended build out period. He did not have standing on behalf of the receivership licensees to challenge the agency's decisions. The agency then turned to the question whether licensees defrauded by application mills other than the four the FTC had sued (the so called </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="576"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/981002.P.pdf">OPINION/ORDER</A><BR> Du Pont and DCI were statutory employers of Evans. Perkins was Evans' fellow statutory employee. The defendants were immune from Evans' Virginia common law action under the VWCA. We affirm. 1 We will refer to Du Pont. DCI and Perkins collectively as </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="576"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/981024.P.pdf">OPINION/ORDER</A><BR> N.A. is a national banking association which maintains an office in Bethesda. NationsBanc Mortgage Corporation ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="576"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/95opinions/95-1585a.html">GOODMAN DANIEL R. V. FCC<BR></A><BR> With them on </p> <p>the joint briefs were <i>Russell H. With her on the </p> <p>brief were <i>Joel I. The peti </p> <p>tioners contend the later decision was arbitrary and capri </p> <p>cious. SMR licenses have increas </p> <p>ingly been used to provide cellular and data transmission </p> <p>services over a wide area. <i>See Fresno Mobile Radio. Few if any of the individuals </p> <p>who obtained SMR licenses with the help of an application </p> <p>mill intended to build transmission facilities or were even </p> <p>capable of doing so. Many of the application mills' customers lost </p> <p>their licenses and others were in jeopardy of losing them.</p> <p>In January 1994 the Federal Trade Commission sued four </p> <p>application mills for fraud. <i>See FTC v. He also took the </p> <p>position that receivership licensees who had voluntarily can </p> <p>celed their licenses were entitled to the benefit of an extended </p> <p>build out period. He did </p> <p>not have standing on behalf of the receivership licensees to </p> <p>challenge the agency's decisions. <i>See id.</i> at 28 34 (apply </p> <p>ing 47 C.F.R. 1.106). </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="576"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=03-1460.01A">OPINION/ORDER</A><BR> Harrington</SPAN> was on brief for appellants. <P> <SPAN STYLE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="576"></TD> <TD CLASS="swtitle"><A HREF="ftp://opinions.ca5.uscourts.gov/byDate/May2004/May19/03-60348-CV0.wpd.pdf">OPINION/ORDER</A><BR> The Tunica casino boat was to be constructed on site. The Biloxi boat named the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="576"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/011899.P.pdf">OPINION/ORDER</A><BR> Because none of the plaintiffs have constitutional standing to bring this suit against FWS. Stasko is Refuge Manager of the Back Bay National Wildlife Refuge. Leger is Refuge Chief of the National Wildlife System. The first was a right of way owned by the City known as Ferrell VII. STASKO 3 The right of way was previously designated for construction of Ferrell Parkway. The second was a piece of property owned by Lotus known as Phases II and III of Lotus Creek. The City Council concluded that the protection of both parcels in a natural state was necessary to </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="576"></TD> <TD CLASS="swtitle"><A HREF="ftp://opinions.ca5.uscourts.gov/byDate/May2004/May18/03-60348-CV0.wpd.pdf">OPINION/ORDER</A><BR> The Tunica casino boat was to be constructed on site. The Biloxi boat named the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="571"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=96-1015.01A">OPINION/ORDER</A><BR> ERRATA SHEET The opinion of this Court is amended as follows: Cover sheet: Replace case number </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="571"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/01opinions/01-5436a.html">OPINION/ORDER</A><BR> Argued the cause for appellants.<span style= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="571"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/96/07/951824P.pdf">OPINION/ORDER</A><BR> Maddox was forced to sue Benham and Dynalogic for breach of contract. Maddox also sued The two misrepresentation counts were dismissed by the trial court. Benham and Dynalogic each counterclaimed against Maddox for monies that they alleged were due them on their respective contracts. Each proposal increased in The proposals costs and complexity to meet changing requests made by EEI. and Benham personnel. concept. were the combined product of Craig. Benham was to The terms of this oral contract were memorialized by Clete Schierman. TBG [Benham] is to develop a final lump sum engineering cost. This chronology was offered at trial as Under a design/build contract. Testified that the only way Maddox would have bid on the project was to rely on the estimates of Benham because Benham possessed all of the design information. provided by Benham. Was for a fixed price of $10. This contract was retroactively dated </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="571"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/95opinions/95-5162a.html">VULCAN ARBOR HILL V. REICH ROBERT<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="568"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2001/03/99-7115.htm">99-7115 -- UNION PACIFIC RAILROAD CO. V. CITY OF ATOKA -- 03/20/2001<BR></A><BR> Circuit Judges. <p> <strong><hr align= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="568"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/03opinions/03-1256.html">NATIONAL STEEL CAR, LTD. V. CANADIAN PACIFIC RAILWAY, LTD, ET AL.<BR></A><BR> Argued for plaintiff appellee.<span style='mso spacerun:yes'> </span>With him on the brief were <u>David P. Illinois.<span style='mso spacerun:yes'> </span>Of counsel was <u>Alexandra DeNeve</u>. Argued for defendants appellants.<span style='mso spacerun:yes'> </span>With him on the brief were <u>Marc S. Addresses a particular type of railway car used to haul lumber: a depressed center beam flat car.<span style='mso spacerun:yes'> </span>Figure 1 of the '575 patent shows a longitudinal section through one side of the car and is reproduced below.</p> <p class=MsoNormal style='text indent:.5in. Line height:200%'>The car described in the '575 patent is a ". Car because the primary structure of the car is a truss like beam element that runs the length of the center of the car between the wheel assemblies. In the front and back of the car.<span style='mso spacerun:yes'> </span>Center beam cars are an industry standard for hauling lumber. Which is piled onto a floor that extends laterally to each side of the car from the bottom of the center beam and then secured to the center beam.<span style='mso spacerun:yes'> </span>Canadian Pacific currently operates a fleet of center beam flat cars.<span style='mso spacerun:yes'> </span></p> <p class=MsoNormal style='text indent:.5in. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="568"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2003/02/01-1077.htm">01-1077 -- U.S. V. CONSUMER INSURANCE GROUP -- 02/10/2003<BR></A><BR> Modrejewski told Holmes </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="565"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca10.uscourts.gov/cgi-bin/getopn.pl?OPINION=04-6276.wpd">OPINION/ORDER</A><BR> The case is therefore ordered submitted without oral argument. (Mivon) was (1) This order and judgment is not binding precedent. Which was pledged to Summit as security. We have jurisdiction under the Federal Arbitration Act (FAA). Any previously existing contract concerning the work contemplated by the Contract Documents is hereby revoked. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="565"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=00-1759.01A">OPINION/ORDER</A><BR> L.L.P.</U> was on brief. Were on brief. These new constructions are located in the San Antonio Channel. So are subject to the Rivers and Harbors Act. The case should have been dismissed because the government of Puerto Rico was an indispensable party to the case. It also says that under the lease any </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="565"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/Sept1997/97a1713p.txt">OPINION/ORDER</A><BR> Which are endangered or threatened species. The project was a hurried response to the devastation wrought by Hurricane Marilyn. The gravamen of the complaint is that the project would cause harm to the turtles and the Tree Boa species in violation of the ESA. This is the plaintiffs' second lawsuit. Instrumentalities of the Virgin Islands Territorial Government had violated the ESA as well 4 as the National Environmental Policy Act ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="565"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200207/01-5436a.txt">OPINION/ORDER</A><BR> With him on the briefs were Roscoe C. Were on the brief for amicus curiae Commonwealth of Virginia in support of appellants Stephen A. Maurice Baskin and Glenn Taubman were on the brief for amici curiae Chamber of Commerce of the United States. With her on the brief were Laurence J. Siegel were on the brief for amicus curiae New York Thruway Authority in support of appellees. Katherine Brewer and Jonathan Cuneo were on the brief for amici curiae Sierra Club. Were on the brief for amici curiae State of New York. That the Executive Order is not preempted by the National Labor Relations Act. I. Background A PLA is a multi employer. It typically requires that all contractors and subcontractors who will work on a project subscribe to the agreement. The implementation of a PLA on a project underwritten by the Government almost always is accomplished by making agreement to the PLA a bid specifi cation. The Executive Order provides that the Government will neither require nor prohibit the use of a PLA on any federal or federally funded construction project. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-5.gif" ALT="562"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/docs/common/opinions/200608/05-1383a.pdf">OPINION/ORDER</A><BR> O:\Slip\WP\2005\05 1383 Village of BENSENVILLE 9 7 06.odl.wpd
	OPINION/ORDER The major issue is whether under the Sentencing Guidelines interest owed on a defaulted loan obtained by fraud may be included by the court in calculating the amount of the victim's loss. 718.85 was principal and $1. 983.89 was interest. Interest on the defaulted loan should not have been included in calculating the victim's loss. Both of which were attended by Sushil and Subodh. Chaudhury signed a side agreement in which Building Technologies agreed to have Eaglemark. The land was to be used as the nursing home site. The mortgage on the property was in Subodh and Vinod's name. The falsified agreement stated that the purchase price was $264. Sushil submitted two financial statements for V Care that were signed but not prepared by a certified public accountant. Construction was
	OPINION/ORDER An Order was entered on behalf of this panel denying Northbrook's petition for rehearing. Northbrook's first contention is that the panel opinion ignored
	OPINION/ORDER Also were on the briefs. Wilson also were on the briefs. Also were on the briefs. Also were on the briefs. Also were on the brief. Blum also were on the brief. Also were on the brief. Also were on the brief. Also were on the brief. Also were on the brief. I Over half of the households in the United States have Internet connections. A Nation Online: How Americans Are Expanding Their Use of the Internet at 2 (Feb. 2002). Available at http:// www.ntia.doc.gov/ntiahome/dn/anationonline2.pdf (hereinafter
	NEOMAGIC CORPORATION V. TRIDENT MICROSYSTEMS Will &. Argued for plaintiff appellant.
	OPINION/ORDER In part:
	OPINION/ORDER In part:
	OPINION/ORDER Of counsel on the brief were R. Of counsel was Kristin L. With him on the brief was James P.
	OPINION/ORDER States: th 1 of law in concluding there was no management agreement. 2711.2 The Tribe and Casino Magic agreed that such approval was a 25 U.S.C. § 81 governs all contracts with an Indian tribe whereby the tribe trades consideration for
	OPINION/ORDER If we find that the denial was a substantial burden. Whether RLUIPA is constitutional. We find the relevant portion of RLUIPA is a permissible exercise of Congress's remedial power under Section Five of the Fourteenth Amendment. Collectively as
	99-2291 -- ELEPHANT BUTTE IRRIGATION DISTRICT OF NEW MEXICO V. U.S. DEPT. OF INTERIOR -- 10/25/2001 The two projects involved in this litigation are the El Paso and Elephant Butte Irrigation Districts. Both of which are part of the Rio Grande Valley irrigation project. That project was part of a national drive to irrigate arid western lands during the late nineteenth and early twentieth centuries. Much of the early irrigation work was originally undertaken by private entities. The reclamation fund was to be made up entirely of money received from the sale of public lands. After construction was complete. The water districts were to reimburse the fund for the construction loans over a period of ten years. The agricultural depression of the 1920s made Congress's original plan for the operation of the reclamation fund unworkable. Many of the water districts were unable to make payments to the fund on their construction loans because of the depression. The goal was to make both the water districts and the reclamation fund solvent. Based upon the recommendations contained in that report. No distribution to individual water users shall be made out of any such profits before all obligations to the Government shall have been fully paid. 43 U.S.C.
	OPINION/ORDER Inc. (
	EATON CORPORATION V. ROCKWELL INTERNATIONAL Will &. With him on the brief were Donna M. Blinkova. Of counsel on the brief were Michael H. Argued for defendants appellants. With him on the brief were Jerold B. Jr. Of counsel was M. Line height:200%'>BACKGROUND Eaton and Meritor are competitors in the market for heavy duty truck transmissions. Heavy duty trucks such as eighteen wheelers often have ten or more gears. Causing the gears of the engine to rotate at a speed that will allow the driver. At which time the driver shifts. Both Eaton and Meritor have attempted to design transmissions that simplify and improve the shifting process. Eaton has developed a transmission that uses automatic shifting in the higher gears and manual shifting in the lower gears. Using automatic shifting in only the top gears can permit optimal highway fuel economy while preventing the costs of automating from exceeding the savings from improved fuel economy. One disadvantage of automatic shifting is that an unexpected shift can cause the driver to lose control of the truck.
	T.BROWN CONST. V. PENA
	HARBERT/LUMMUS V. U.S.
	OPINION/ORDER With him on the briefs were James T. With him on the brief were Jay L. With him on the brief were David W. Explaining that Iroquois had failed to carry the burden of proving that the costs were prudently incurred. Iroquois says the orders were grounded in an impermissible presumption of non recoverability and asks us to set them aside. Were also undertaken by the U.S. While the various inves tigations were still under way. Hearings on these reserved issues were held before an administrative law judge. Who determined that the legal costs were not unrecoverable per se. Observed that
	OPINION/ORDER The crux of the dispute is that Waste Management wants to construct its buildings on the southern side of the landfill property. The City argues that the buildings are required to be located on the western side of the landfill property. Federal litigation began immediately thereafter and many of the following facts are taken from this Court's previous ruling in Waste Management of Ohio. This Settlement Agreement was. Building locations and support facilities as shown AAA is in substantial compliance with PD 69.
	02-8087 -- GREATER YELLOWSTONE COALITION V. FLOWERS -- 02/20/2003 4321 et seq. Plaintiffs claim that the project will cause irreparable harm to three bald eagle nesting territories. Finding no irreparable harm and concluding that the plaintiffs were unlikely to succeed on the merits. The purpose of building the golf course was to provide additional income so that the remainder of the Ranch could remain viable as a ranching operation.
	OPINION/ORDER LLP was on brief. P.C. were on brief. This appeal is an early round in the legal battle over whether a commercial wind energy farm may be built in Nantucket Sound. In October 2002. Ten Taxpayer argues that the district court was obligated to remand the case to state court for lack of federal subject matter jurisdiction. We affirm.
	03-1171 -- DURAN V. COMMUNITY FIRST BANKSHARES INC. -- 03/22/2004 The case is therefore ordered submitted without oral argument. Rueben E. We affirm.
	OPINION/ORDER Is amended as follows: On page 28. Were on brief. Were on brief. Was on brief. Were on brief. Were on brief. Will & Emery. (2) make findings regarding allegations of anticompetitive consequences of the merger that were unique to Holyoke. Northeast Utilities Service Company (
	OPINION/ORDER Tomko was also ordered to undergo twenty2 eight days of in house treatment for alcohol abuse. This sentence is unreasonable in light of the circumstances of this case and the sentencing factors outlined in 18 U.S.C. § 3553(a). It was therefore an abuse of discretion for the District Court to impose it and we will vacate the judgment and remand for resentencing. Inc. is classified as a flow through
	OPINION/ORDER We conclude the court erred in refusing to authorize an amendment of the complaint and in determining that the DENR Defendants are entitled to immunity. These efforts have followed a tortured path. The small town of Holly Springs is home to the largest percentage of African Americans of any municipality in Wake County.2 Despite having less than two percent of the County's population. Holly Springs itself is presently home to three other landfills. The Plaintiffs have not contested the dismissal of their Title VIII claim as to Wake County. When their claims were dismissed. We are obliged to accept as true the facts alleged in the complaint.3 Those facts are further reviewed in relevant part below. The South Wake Landfill will spread across 471 acres. This letter notified the County that the site was considered appropriate. There was no public participation in the process until May 16. The Plaintiffs' challenges to the construction of the South Wake Landfill have travelled a complicated path. They are ongoing both in this Court and in the Court of Appeals of North Carolina.
	TRIAX PACIFIC V. SECRETARY OF THE ARMY
	OPINION/ORDER Which is located southeast of Pittsburgh. The District Court held that the case was mooted by an amendment of the original zoning ordinance and therefore granted the Township's motion for summary judgement on all claims. Because we hold that this case is not moot. An antenna is located in the approximate center of a cell and the antenna transmits wireless signals to and from cell phone users in that cell. It is typically mounted on a tower or other tall structure. The perimeter of each cell is shaped by the topography surrounding the antenna. Where the terrain is flat. A cell is circular and several miles in diameter. Because each wireless company is licensed by the Federal Communications Commission (
	OPINION/ORDER Is amended as follows: On page 25.
	OPINION/ORDER Ugol were on the briefs. Were on the brief. Bean were on the brief for amici curiae Center for Marine Conservation. Hawkins were on the brief for amicus curiae Pacific Legal Foundation. Kamenar were on the brief for amicus curiae Washington Legal Foundation. III was on the brief for amicus curiae American Land Foundation. Which is located only in California. An insect that is native to the San Bernardino area of California. The habitat of which is located entirely within an eight mile radius in southwestern San Bernardino County and northwestern Riverside County. The district court held that application of section 9(a)(1) of the Endangered Species Act to the Fly is a valid exercise of Congress' power pursuant to the Commerce Clause. We affirm the district court's decision to grant the government's motion for summary judgment.1 1 Summary judgment is appropriate when all of the submissions
	BAYER AG V. BIOVAIL CORPORATION Argued for plaintiffs appellants.
	OPINION/ORDER Judicial review is authorized by the FAA Authorization Act of 1994. We conclude the FAA's decision was not
	OPINION/ORDER Unpublished opinions are not binding precedent in this circuit. Appellant West Langley Civic Association (the
	OPINION/ORDER Background The following is a summary of the underlying facts as found by the bankruptcy court. TAG was started in 1986 by debtor. Goldford is debtor's nephew. Niswonger was Goldford's business associate. After TAG was established. TAG and Thunderbird Construction entered into an agreement whereby Thunderbird Construction was to serve as the construction contractor for TAG's first and only real estate development. Debtor
	02-1554 -- WEIS BUILDERS INC. V. KAY S. BROWN LIVING TRUST -- 03/17/2004 The case is therefore ordered submitted without oral argument. I. Defendants appellants Kay Brown Living Trust and Ryan S. Seeking a declaratory judgment that there was no contract between the parties. Arguing that the district court's order is interlocutory and. An interlocutory order granting an injunction against an arbitration that is subject to the Act is considered 'final' at least for the purposes of appeal.
	OPINION/ORDER On the ground that the Vermont statute is preempted by the Interstate Commerce Commission 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Termination Act of 1995. Is for that purpose preempted by the Interstate Commerce Commission Termination Act of 1995. I Green Mountain is a
	UNITHERM FOOD SYSTEMS, INC., ET AL. V. SWIFT-ECKRICH Argued for plaintiffs appellees. With him on the brief were Greg A. Walters. Also on the brief was Dennis D. Argued for defendant appellant. With him on the brief were Leigh O. Of counsel on the brief were John P. plaintiffs ) that ConAgra was liable for attempted monopolization and for tortious interference with prospective economic advantage. Properly found the 027 Patent invalid and unenforceable for reasons of both prior use and prior sale under 35 U.S.C. § 102(b). The district court was also correct. Announced that it was making the 027 Patent and corresponding patents that may issue available for license at a royalty rate of
	OPINION/ORDER The Plaintiffs say the Defendants designed and constructed residences that were not accessible to handicapped persons as required by the Fair Housing Amendments Act of 1988 (
	TIMEX V. US
	US SURGICAL CORP. V. ETHICON INC.
	OPINION/ORDER We will therefore affirm. The seeds of this dispute were sown when a real estate development was planned in Atlantic City. A brief discussion of it is necessary to place the dispute in context. The H Tract is located in the Marina District of Atlantic City and is comprised of approximately 178 acres. 150 of which are owned by Atlantic City. The tract consists of wetlands that 3 were used as a municipal landfill until the 1960's. Trump claims that the H Tract is highly contaminated with hazardous substances and is vacant except for a few municipally maintained facilities. The Remediation Act was subsequently enacted into law. The most significant contingency for purposes of this dispute was the approval and funding by the State of New Jersey of a roadway called the
	97-8055 -- FRU-CON CONSTRUCTION CORP. V. KFX INC. -- 09/01/1998 EA K was created to develop coal processing facilities in North America. Which were to transform low grade coal into a better fuel called K Fuel. Fru Con shall not be required to perform any further services and B+B shall have no further obligation to make a capital contribution to [EA K] Energy. Paragraph (f) stated
	OPINION/ORDER BEACH CLUB II 3 ers association is not a party to the general contract. The general contractor is not a third party beneficiary of the master deed and is not otherwise entitled to invoke its arbitration clause. Because the arbitration provisions and legal issues are identical in the three cases before us. The facts are as follows. Is not a party to the deed. Nor is it referred to anywhere in the deed's provisions. Griffin alleged that the Association was subject to mandatory arbitration based on provisions in the general construction contract and The Beach Club master deed. Griffin argues that the Association is compelled to arbitrate its negligence and breach of warranty claims under two separate arbitration provisions. Griffin asserts that it is a third party beneficiary of the master deed. Griffin says in the alternative that the Association is equitably estopped from avoiding the master deed's arbitration provision. A. Griffin's main argument is that the arbitration clause in the general contract is enforceable against the Association through the doctrine of R.J.
	OPINION/ORDER The United States Fish and Wildlife Service have violated numerous environmental and conservation oriented statutes. Background Fort Baker (
	OPINION/ORDER Unpublished opinions are not binding precedent in this circuit. Although the case was brought mainly under 42 U.S.C. § 1983. The City was required to reimburse Pulaski for certain expenses in operating the incinerator. The WDSA's original term was fifteen years. For the first eleven years the WDSA was in effect. Community opposition was mounting against the operation of any incinerator whether retrofitted or new at the 3 Pulaski site. If it was certified by the Director of Public Works. Replacement or expansion is necessary to serve the public interest in the efficient. Seeking (1) a declaratory judgment that the Moratorium was preempted by state law and (2) damages for the City's alleged breach of the WDSA. The Director certified to the City Council that a replacement incinerator at the Pulaski site was
	OPINION/ORDER Because the property in question (including the forty foot square parcel to be leased to USCOC) is only about 1.3 acres. The proposed tower is required to be
	N:\DOCS\E-DOS\8-31\06-3063 168TH AND DODGE V. RAVE REVIEWS OPN 8.23.WPD RED is a commercial property development company. Judge Shanahan was assigned to this case when it was filed and decided the motion to dismiss. The case was reassigned to the Honorable Joseph F. Painter expressed his belief that Rave was
	OPINION/ORDER Ward were on the joint briefs. Lange was on the briefs. Zolet were on the briefs. Whittle was on the briefs. Brackett was on the briefs. Were on the brief. Wallbillich were on the brief. Whittle were on the brief. Were not otherwise arbitrary and capri cious. FERC tradition ally approved pipelines' proposals to roll expansion costs into their general rates (thereby allocating expansion costs to all users pro rata regardless of the extent to which they use the new facilities) so long as the pipeline could show both that the system was integrated and that qualitative benefits accrued to all customers as a consequence of the expansion. Claiming that FERC's orders were arbitrary. While not holding that the commensurate benefits test was itself invalid. Arguing that the outcome was inequitable and not mandated by TransCanada. We do not consider what effect its application would have had. decision to apply a commensurate benefits test was
	OPINION/ORDER The Compact was created and entered into by five member states and was also enacted into law by Congress. Nebraska was selected as the site for the facility. The Commission is a plaintiff in this case. This action was originally brought against Nebraska and the Commission by utility companies from the five Compact states: Entergy Arkansas. The defendants named in the Commission's complaint were the State of Nebraska. The case was tried to the district court for two months. It found that Nebraska had not carried out its obligations under the Compact in good faith and that the Commission was entitled to recover over $97 million for funds and work expended in the thwarted attempt to construct the radioactive waste disposal facility. Some of which were decided against it on earlier appeals. We have already addressed the Compact and related issues in a series of earlier appeals in this case. 207 F.3d 1021 (8th Cir. 2000) (Nebraska did not have veto power over low level radioactive waste export permits). V. Each member state is represented on the Commission by one representative and is entitled to a single vote.
	OPINION/ORDER Therefore deny An ALP is a document which shows
	RIDGE LINE, INC., V. U.S. Argued for plaintiff appellant. With him on the brief were Kent J. Argued for defendant appellee. With him on the brief were Thomas L. Attorneys. Of counsel on the brief was William B. Was not effectually destroyed nor suffered a permanent and exclusive occupation by the increased runoff from the federal land uphill from Ridge Line s property and that in any event Ridge Line failed to demonstrate quantified damages for any erosion injury to South Hollow or diminished resale value thereof. Because the trial court (1) failed to address whether the increased storm drainage constituted a taking of a flowage easement by inverse c
	OPINION/ORDER We will reverse. We will vacate the district court's judgment and remand so that the district court may determine whether the regulations can be upheld despite their discriminatory effect.[fn1] I. The facts of this case are generally not in dispute.[fn2] The necessary factual background concerns New Jersey's waste management system and Atlantic Coast's activities. Or was in the process of closing. Was at the forefront of both the problem and the solution. A number of additional counties were forced by the continuing capacity shortages to make disposal arrangements with out of state facilities. New Jersey waste was banned. New Jersey's existing statutory and regulatory waste management system is the result of attempts to respond to this crisis.[fn3] The two major statutory provisions of New Jersey's solid waste management system are the Solid Waste Management Act (
	OPINION/ORDER We will reverse. We will vacate the district court's judgment and remand so that the district court may determine whether the regulations can be upheld despite their discriminatory effect.[fn1] I. The facts of this case are generally not in dispute.[fn2] The necessary factual background concerns New Jersey's waste management system and Atlantic Coast's activities. Or was in the process of closing. Was at the forefront of both the problem and the solution. A number of additional counties were forced by the continuing capacity shortages to make disposal arrangements with out of state facilities. New Jersey waste was banned. New Jersey's existing statutory and regulatory waste management system is the result of attempts to respond to this crisis.[fn3] The two major statutory provisions of New Jersey's solid waste management system are the Solid Waste Management Act (
	OPINION/ORDER To
	CTY CLEVELAND OH V. NRC
	OPINION/ORDER Circuit Judge: The issue presented by this case is whether. A company which contracted to build a house is covered under its commercial general liability policy against claims brought against the company by the dissatisfied homeowners. Construction was completed. The gravamen of the homeowners' allegations was that Oceanic improperly designed and/or constructed the foundation of the residence causing earth movement and resulting in physical and structural damage to both the residence and the retaining walls on the property. At the time the counterclaim was filed. Oceanic was the named insured under a standard form commercial general liability (
	OPINION/ORDER It is from this judgment that Mr. Although the parties have not raised the issue here. We are obliged to consider. Since he was neither a party to nor an intended beneficiary of that agreement. We do not have the power to entertain the appeal. The essential facts are these. Was originally chartered in 1963. The amendment was approved by referendum in the Town's November election. The Town Charter was amended to contain the provision:
	OPINION/ORDER To
	OPINION/ORDER With him on the briefs were Christine McLaughlin and Robert H. With him on the briefs were Carole C. With her on the brief were Joel I. Hays and Michael Kovaka were on the brief for intervenor Nextel Communications. Circuit Judge: Before us are petitions for review of two Federal Communications Commission rules creating a new class of radio spectrum licenses for bandwidth in the 800 MHz range. An increasing number of SMR licen sees have begun to use their spectrum for more ambitious purposes in particular. They were also hampered because most of the SMR bandwidth had already been licensed. The Commission was required to promulgate
	OPINION/ORDER Circuit Judge Shipping solid waste to Midwestern landfills has become big business particularly in places like New Jersey where capacity at in state landfills is scarce. Railroads are prime beneficiaries of the increased demand for the means of shipping waste across the country. Which often is brought to the loading facility by truck. Transferring solid waste from truck to rail car is not the cleanest of businesses. Is historically the subject of federal regulation. Because we conclude that the District Court's factfinding does not support its conclusion that all of the State's environmental regulations at issue are preempted here. They then paid
	OPINION/ORDER Which is owned by Imperial. He could have constructed. He could have had the waste treated at a plant. The on site facility would have In addition. Potentially malodorous. the facility would have discharged the treated waste into a so called
	UNITED STATES V. GEORGIA, MERIWETHER COUNTY (4/8/1999, NO. 96-9062) The point of contention was the issue of a consolidated high school for Meriwether County.
	OPINION/ORDER With him on the brief was Edward Jorgenson.
	UNITED STATES V. GEORGIA, MERIWETHER COUNTY (4/8/1999, NO. 96-9062) The point of contention was the issue of a consolidated high school for Meriwether County.
	OPINION/ORDER The laws which provide in certain controlled substance cases for sentences beyond the basic 20 year maximum imposed by § 841(b)(1)(C) for default cases where quantity is not a sentence determining factor. As have our sister circuits before us. 1 we hold that § 841 is not facially unconstitutional. Buckland was indicted on one count of conspiracy to distribute methamphetamine. As was customary. The jury was not instructed that it had to determine any particular amount of methamphetamine in order to convict Buckland. 841(b)(1)(A) was life. The district court determined at sentencing that the gross amount of drugs for which Buckland was responsible was almost eight kilograms and sentenced him to 824 months in prison. Buckland originally advanced several contentions: (1) the district court's findings on the type and quantity of methamphetamine were erroneous. Contending also that 915 these sentencing errors were not prejudicial and. That was plain. III DISCUSSION Buckland contends that § 841 is facially unconstitutional.
	OPINION/ORDER 2002 is hereby recalled for the purpose of amending the opinion. Located at 277 F.3d 1173 is amended as follows: Page 1184 in section
	OPINION/ORDER Nottoway County contends that its decision to deny the permit was indeed supported by
	OPINION/ORDER Presiding *The Honorable Arnold Schwarzenegger is substituted for his predecessor. Circuit Judge: Plaintiffs are California card clubs and charities that are prohibited under California state law from offering casinostyle gaming.
	OPINION/ORDER This court dismissed the appeal for lack of jurisdiction Eby provided a payment bond for the construction project which was underwritten by FIC and FDCM. 1 because the order granting partial summary judgment did not dispose of all of the issues raised in the complaint and it had not been certified for immediate review in accordance with Fed.R.Civ.P. 54(b).2 Later. After its work was completed. An immediate appeal is proper when the court directs that its judgment be deemed final in accordance with Rule 54(b). Rule 54(b) permits
	OPINION/ORDER Circuit Judges. Judge Murnaghan heard oral argument in this case but died prior to the time the decision was filed. The decision is filed by a quorum of the panel. 28 U.S.C. § 46(d). 2 Affirmed in part. Unpublished opinions are not binding precedent in this circuit. Metric claims that the Banks allowed it to continue working when they knew the Project was in jeopardy. I. In May 1995 Metric and Carolina Energy Limited Partnership (CELP) entered into an $86 million Turnkey Design and Construction Agreement (Construction Agreement) under which Metric was to build the Project for CELP at two sites in North Carolina. The Construction Agreement provided for payment to Metric under the following procedures. Including a statement that the work was performed in accordance with the Construction Agreement. Lien waivers from Metric and its subcontractors were also required to insure the effective release of all mechanic and materialmen's liens for the month for which payment was due. *CELP is not a party in this case. 4 gave the Bank of Tokyo responsibility for disbursing the funds for Project construction to CELP.
	OPINION/ORDER Is amended as follows: Page 2. William Shakespeare tells us in a famous passage from Romeo and Juliet that labels are not important. Rather that content is what counts.6 In more recent times. The BETTY F is thus a
	OPINION/ORDER Of counsel on the brief were Robert J. With him on the brief was Richard T. That the patent was invalid. I A The technology at issue in this case involves what are known as
	OPINION/ORDER If an entity is not yet ready to construct a nuclear power plant but desires to seek early approval for a potential construction site. If the benefits are not discussed. An admissible contention is one that provides sufficient information to show that a genuine dispute exists on a material issue of fact or law. 10 C.F.R. § 2.309(f)(1)(vi). Exelon is a merchant generator. Exelon is not required to supply the energy needs of any particular area. That is. The report concluded that several of the alternatives were not viable baseload energy alternatives because. Were not reasonable baseload alternatives because they are intermittent energy sources and therefore cannot maintain continuous full rated capacity (the sun is not always shining. The wind is not always blowing). Reasoning that energy efficiency is not an alternative generation method that independent power generators like Exelon typically employ. Or facilities using a combination of these alternatives were not environmentally preferable to the proposed nuclear facility.
	OPINION/ORDER Were on consolidated brief for petitioners Bangor Hydro Electric Company. Were on consolidated brief for respondent.
	O:\2005-2006 TERM\03-20-06 SITTING\03-1456 AMERICAN CHEMISTRY COUNCIL V. DOT\OPINION\AMERICAN_CHEMISTRYFINALV2.WPD With him on the briefs was Nicholas J. Ackerman were on the brief for intervenors Utility Solid Waste Activities Group. On the brief were Peter D. Transporters challenge a Department of Transportation (
	OPINION/ORDER Were on brief. Were on brief. Were on brief. Horseshoe Shoals is located on the Outer Continental Shelf (
	99-4136 -- SANPETE WATER CONSERVANCY DISTRICT V. CARBON WATER CONSERVANCY DISTRICT -- 09/15/2000 Sanpete Water Conservancy District (Sanpete) and Carbon Water Conservancy District (Carbon) are the long time combatants. This most recent lawsuit is a contract interpretation case. Background facts are taken largely from the district court's June 3. Because they are not in dispute.
	RF&P RAILROAD V. U.S.
	OPINION/ORDER EchoHawk was on the briefs for petitioner Ohngo Gaudadeh Devia. Jr. was on the briefs for petitioner State of Utah. 2 Catherine Cortez Masto. Fitzpatrick were on the brief for amicus curiae State of Nevada in support of petitioners. Were on the brief for federal respondents. Bauser were on the brief for amicus curiae Nuclear Energy Institute. Gaukler were on the brief for intervenors Private Fuel Storage. Because it is speculative whether 3 the project will ever be able to proceed. While most ISFSIs are located at the reactors where the spent nuclear fuel is generated. Its preferred option was to build a new. PFS's alternative option was to build an intermodal transfer facility. At which spent nuclear fuel would be These petitions for review were considered on the record from the Nuclear Regulatory Commission and on the briefs filed by the parties. Which is specific to the site designated in the proposed lease. Its term is twenty years. On the ground that the intermodal transfer facility was
	OPINION/ORDER For relief from certain actions and inactions by the City that Andreano claims have prevented him from developing a parcel of his property in Westlake. That were based on the City's filing
	96-1291 -- SK FINANCE SA V. LA PLATA COUNTY, BOARD OF COUNTY COMM. -- 10/01/1997 The planning commission approved the plats and the plats were subsequently recorded. At the time the plats were approved. The Colorado Department of Health (CDH) was the only governing entity that had adopted sewage treatment regulations. Successive owners of the Subdivision have constructed many on site improvements. Have incurred engineering and legal fees. Several lots in the Subdivision have been sold. All of the improvements were allegedly done in reliance on the approved plats for the Subdivision. In 1982. The CDH indicated to the developer that it would not approve an on site sewage treatment system unless the developer was unable to contract for sewage treatment from the City of Durango (City). The request was set aside with the developer's concurrence pending creation of a land use plan. The City remains willing to negotiate to provide sewer service to the Subdivision if a legal entity is created that is capable of managing and maintaining the system as provided by the Plan. The principal problem with connecting to the City's sewer facilities appears to be that the City requires ductile iron pipe while the Subdivision was improved with PVC pipe. In 1990.
	OPINION/ORDER Individual appellants are Robert D. We will affirm. The factual background of this protracted dispute is detailed in the district court's comprehensive opinion. We will only briefly summarize the factual and procedural history of this dispute insofar as it is helpful to our discussion. The UDAG Program was created by a 1977 amendment to Title I of the Housing and Community Development Act of 1974 (
	SK FINANCE V. LA PLATA COUNTY BD. OF COMM'RS The planning commission approved the plats and the plats were subsequently recorded. At the time the plats were approved. The Colorado Department of Health (CDH) was the only governing entity that had adopted sewage treatment regulations. Successive owners of the Subdivision have constructed many on site improvements. Have incurred engineering and legal fees. Several lots in the Subdivision have been sold. All of the improvements were allegedly done in reliance on the approved plats for the Subdivision. The CDH indicated to the developer that it would not approve an on site sewage treatment system unless the developer was unable to contract for sewage treatment from the City of Durango (City). The request was set aside with the developer's concurrence pending creation of a land use plan. The City remains willing to negotiate to provide sewer service to the Subdivision if a legal entity is created that is capable of managing and maintaining the system as provided by the Plan. The principal problem with connecting to the City's sewer facilities appears to be that the City requires ductile iron pipe while the Subdivision was improved with PVC pipe.
	FERGUSON BEAUREGARD/LOGIC CONTROLS V. MEGA SYSTEMS Argued for both plaintiffs appellants. On the brief for plaintiff appellant Ferguson Beauregard/Logic Controls was T. Were Gerald L. (3) the district court s conclusion that Bartley was not personally liable for inducing Mega to infringe the 991 patent and U.S. Line height:200%'>BACKGROUND Overview of the Technology The patents in this case concern control systems and related methods used in the production of petroleum products from a well. While some wells are capable of producing (or outpouring) liquid petroleum products under naturally induced reservoir pressures. It is more common for wells to require an artificial lift mechanism to be productive. 991 patent. Ll. 7 11. One such artificial lift system repetitively causes pressure to build by first closing in the well while it is subject to the inflow of liquids. Id. at ll. 14 18. After the proper combination of pressure and liquid develops.
	OPINION/ORDER I. BE&K is a non union merit shop construction contractor headquartered judgment. in Birmingham. It performs in plant and construction work for BE&K was hired by Potlatch various industries throughout the country. Potlatch is a paper manufacturing company headquartered in San Francisco. 000. 1 Four bids were George Hight. Potlatch employees at the Cypress Bend paper mill are represented by two local Paperworkers unions. A maintenance local and a production local.2 The Paperworkers are an international union that represents in plant production and maintenance workers at paper mills throughout the United States. The evidence at trial indicated that the local unions and the company maintain a BE&K began preparations 1 The bid amount was later reduced to approximately $575. The local unions were originally named as defendants in this action. The meeting was attended by thirteen Potlatch officials. The president and chief operating officer who was based in San Francisco but was in Arkansas to attend meetings.
	OPINION/ORDER The petition for review is therefore denied. There is an exception from FERC jurisdiction. (2)
	PREFERRED SITES, L.L.C. V. TROUP COUNTY (7/10/2002, NO. 01-14182) Appellee alleged the Board's decision was not supported by substantial evidence contained in a written record. Which typically are used to provide cellular telephone service. Which is located in Troup County. Appellee's application was required by the Troup County Zoning Ordinance. Were submitted to the Board. A set of blank lines to write in an explanation of the proposal for which the petition was being circulated. Only two of the petitions were complete. Indicating both the purpose of the petition was to oppose the tower and the proposal for which the petition was circulated was to object to the construction of the tower. The third petition merely noted the location of the proposed tower and indicated the proposal for which the petition was circulated was to object to the construction of the tower. Appellant claimed Appellee's action was untimely filed and Appellee had failed to meet the requirements of the zoning ordinance. The district court held Appellee's action was filed within the statute of limitations.
	UNITED ASSOC JOURNEY V. RENO JANET
	SAUER INCORPORATED V. RICHARD J. DANZIG With him on the brief was James W. With him on the brief were David W. Sauer was to complete the inside wall and ceiling construction. Liquidated damages for late completion were set at $1725 per day.
	OPINION/ORDER I. DM&E is required to obtain approval from the Board before constructing the new rail line. Because granting such approval is
	PREFERRED SITES, L.L.C. V. TROUP COUNTY (7/10/2002, NO. 01-14182) Appellee alleged the Board's decision was not supported by substantial evidence contained in a written record. Which typically are used to provide cellular telephone service. Which is located in Troup County. Appellee's application was required by the Troup County Zoning Ordinance. Were submitted to the Board. A set of blank lines to write in an explanation of the proposal for which the petition was being circulated. Only two of the petitions were complete. Indicating both the purpose of the petition was to oppose the tower and the proposal for which the petition was circulated was to object to the construction of the tower. The third petition merely noted the location of the proposed tower and indicated the proposal for which the petition was circulated was to object to the construction of the tower. Appellant claimed Appellee's action was untimely filed and Appellee had failed to meet the requirements of the zoning ordinance. The district court held Appellee's action was filed within the statute of limitations.
	OPINION/ORDER The Project Agreement included the following clause in section 3.03: The Collective Bargaining Agreement (
	AIRPORT NEIGHBORS ALLIANCE, INC. V. UNITED STATES Argues that the agency should have prepared an EIS. Background The Airport is located four miles south of Albuquerque's central business district and is surrounded by residential neighborhoods to the north. The Airport is served by four runways. At the time the Runway 3 21 upgrade was proposed. Runway 8 26 was the primary runway. The other two runways Runway 3 21 and Runway 12 30 were of insufficient width. Which is the proposed action being challenged here. Is closed for reconstruction. 1995 and that remaining aspects of the project were substantially completed on December 17. EA was inadequate because it failed to address the cumulative impacts of the proposed action. We must consider whether Airport Neighbors' appeal is now moot. We are under an independent obligation to examine our own jurisdiction. A NEPA claim no longer presents a live controversy when the proposed action has been completed and when no effective relief is available. 1524 n.3 (10th Cir. 1993) (finding case challenging airport construction not moot after construction was completed when re strictions could be placed on the use of an airport).
	STATE OF FLORIDA V. U.S.
	99-9542 -- PUBLIC SERVICE CO. OF COLORADO V. U.S. ENVIRONMENTAL PROTECTION AGENCY -- 08/29/2000 INTRODUCTION The Environmental Protection Agency (
	ANCHOR WALL SYSTEMS, INC V. ROCKWOOD Argued for plaintiff appellant. With him on the brief was Alan G. Argued for defendants appellees. With him on the brief were Eric H. Ulbrich. Of counsel on the brief was Malcolm L. Because the district court concluded that there was a complete bar to application of the doctrine of equivalents pursuant to this court s ruling in Festo Corp. v. Line height:200%'>Anchor is the assignee of the six patents at issue. Which are related to one another as continuations in part. Ll. 63 65. A course of these blocks is laid. Fig. 7. A block in the next ascending course is placed on top of the course below so that a protrusion 26 from the lower course fits into one of the side insets 22A or 22B of two adjacent blocks in the upper course. '363 patent. Ll. 38 41. The upper course block is pushed forward so that the back wall of the inset abuts the back of the protrusion 26. The abutment of protrusion 26 against one of the insets 22A or 22B resists the forward pressure of the earth.
	OPINION/ORDER We have jurisdiction to review the NEPA claims. Because it was approved in a separate agency action and OPA vests review of such plans in the district court. It is a harsh environment: the average annual temperature is eleven degrees Fahrenheit. Some wells are to be in the federal portions of the reservoir. Will carry oil from Seal Island to the shore. Will carry natural gas to Seal Island for use as fuel. The oil pipeline will run for eleven miles above ground to a connection with the Trans Alaska Pipeline. The Trans Alaska Pipeline will transport Northstar oil to Valdez. Tankers will carry the oil to ports in the western U.S. and abroad. Production from the project is expected to last fifteen years. A single EIS was prepared by the Corps. Is an international environmental organization. The individual petitioners are Inupiat Eskimos who maintain that the approval of Northstar threatens their ability to continue hunting.
	OPINION/ORDER We now conclude that the government's waiver of sovereign immunity reflected in the Suits in Admiralty Act is subject to an implied exception similar to the discretionary function exception contained within the Federal Tort Claims Act. I. The relevant facts are set out in detail in the panel's opinion. We will only briefly recount them here. The plaintiffs were riding two jet skis on the Ohio River in the vicinity of the Robert C. The plaintiffs were injured when they went over the gates and dropped approximately twenty five feet to the water below. There were several warning signs on the upstream side of the dam. Their evidence indicated that the signs were difficult to see from the river. Alleging that the government had a duty to warn about the dangers of the dam and that the signs in place were inadequate to satisfy this duty. Arguing that it was protected by an implied discretionary function exception to the SIAA's waiver of sovereign immunity. The government also moved for summary judgment on the merits of the plaintiffs' claims on the grounds that it had no duty to warn about the dam and that the warnings it provided were.
	OPINION/ORDER
	OPINION/ORDER Will. Because the Army Corps is entitled to approve an applicant's project proposal under a less stringent Nationwide Permit regime even if the applicant initially requested a type of individual permit that would have required more rigorous review. Because there was sufficient evidence to support the Army Corps' decision to approve the project. I. Hanover County is located in a rapidly growing area north of Richmond. Because it appears that Henrico County is unwilling to satisfy Hanover County's wastewater treatment needs beyond this contractual limit. They oppose the project and have filed numerous court challenges against it. There are two different methods of obtaining Army Corps clearance for a project. The general permits at issue in this case are all Nationwide Permits (NWPs). Activities falling within the scope of an NWP are automatically authorized without any individualized inquiry. Although preconstruction notification of the Corps is required in some cases. 33 C.F.R. § 330.1(e) (2003). In cases where preconstruction notification is required.
	O:\2005-2006 TERM\12-01-05 SITTING\04-1291 ENV. DEF. V. EPA\OPINION\EDF FINAL.WPD With her on the brief were John C. Transportation Solutions Defense and Education Fund (
	OPINION/ORDER PA 19103 Counsel for Appellee Sun Ship Inc. This case was argued before the panel of Judges Fuentes. The decision is filed by a quorum of the panel. 28 USC § 46(d) *Judge Roth assumed senior status on May 31. 2 alleging both false claims and
	OPINION/ORDER Because Carr is a limited purpose public figure who has forecast no evidence that Forbes acted with actual malice in publishing the article. As Interwest was developing the Quartzsite project. Who were familiar with Carr's work in Quartzsite. The sewer district was unable to pay off its bonds and ultimately filed for bankruptcy. Was controlled by DLR. The record does not reveal whether Carr was an officer in Interwest Carolina. Was the
	OPINION/ORDER With whom John Haven Chapman and Christine McLaughlin were on the briefs. Raposa were on the briefs. McKenna were on the briefs. With whom David Cosson was on the briefs. General Counsel at the time the brief was filed. Were on the brief. Were on the joint briefs. Kraskin were on the joint briefs for intervenors Rural Telecommunications Group. For three years from the date of the upcoming LMDS auction.1 The FCC explains that its Order is designed to prevent LECs from acquiring LMDS licenses in order to preempt competition in the local tele 1 The FCC's challenged eligibility restriction applies to both local exchange carriers and cable operators. Provides both local exchange service and is the nation's third largest cable operator. Promulgated while the FCC was devising the current regime.
	OPINION/ORDER Plaintiffs' homes were built with wood foundations. We have jurisdiction under 28 U.S.C. § 1291. The MHHO Program was designed to These facts. Are taken from Plaintiffs' complaint. Which is presumed true for purposes of this Rule 12(b)(6) proceeding. The families were required to contribute land. Each family was required to make monthly payments in an amount calibrated to their income. The homebuyers were made responsible for maintenance of the house. When the program was formalized in the Indian Housing Act of 1988. The Blackfeet Housing Authority was charged with
	REDWING CARRIERS, INC. V. SARALAND APTS. This document was created from RTF source by rtftohtml version 2.7.5 > Redwing Carriers. Redwing sued the Appellees claiming they are liable under the Comprehensive Environmental Response. (Saraland) Site is a 5.1 acre parcel of land located within the southern Alabama community of Saraland. Redwing was in the business of hauling materials used in construction and other industries. Trucks were cleaned out. The ground at the Site became contaminated with hazardous chemicals which have combined to form a black. Bolton were partners in Saraland Limited. Meador completed construction of the Saraland Apartments complex in May 1974.<p> Construction of the complex was subsidized by the United States Department of Housing and Urban Development (HUD) to provide low income housing. Marcrum denies Redwing's claim that the company is the daily. The complex's parking lot was repaved. Coit and Roar are responsible for managing the business of the Partnership. Meador were liable under </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//june96/95-8572.opa.html">ALLGOOD ELECTRIC CO. V. MARTIN K. EBY CONSTR. CO.<BR></A><BR> This document was created from RTF source by rtftohtml version 2.7.5 > <title>Allgood Electric Co. v. After its work was completed. What appears to be photocopies of these documents.<p> The payment applications identified the project and were addressed to Eby. Each application specified that it was for work performed by Allgood for a certain period of time and stated that. Relinquish all claim or rights of lien which the undersign [sic] may now have upon the premises above described except for claims for right of lien for contract and/or change order work performed to extent [sic] that payment is being retained or will subsequently become due.<p> <p> (R1 35. Appeared on the applications.<p> The completion certificate made a part of the record by Eby was addressed to the Georgia State Financing and Investment Commission ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/199912049.OPN.pdf">OPINION/ORDER</A><BR> Five district court judges have presided over the case since its inception. Two different circuit courts of appeals have been asked to review one of their decisions.1 In this fifth appeal. We agree with the district court that the answer is </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/991232.P.pdf">OPINION/ORDER</A><BR> Two issues are raised on appeal: first. Whether a general contractor may rely on the non occurrence of a valid </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/200311106.pdf">OPINION/ORDER</A><BR> On the basis that Ajax and the crane were insured under a builder's risk policy issued by Hartford. Although Hartford concedes that Ajax was an insured under both the builder's risk policy and a supplement to this policy. Hartford argues that the damaged crane is not covered under either policy. Concluding that the crane was indeed covered under the DIC policy. Was required under the prime contract to procur e a builde r's risk ins urance p olicy nam ing all of its subcontractors as additional insureds. This policy was to insure against all risks of loss. T he build er's risk p olicy and the DIC supplem ent to this policy issued by Hartford naming both Clark and Ajax as insureds is a result of these contract terms. Leased a crane from Kelley that Ajax was to use in its structural work on the Project. While Ajax was performing crane operations. Kelley's crane collapsed and was damaged. Pau l defend ed Ajax under a general lia bility policy Ajax h ad obtain ed in conjunction with the work it was performing on the Project. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/01opinions/01-1350.html">RAYTHEON COMPANY V. THOMAS WHITE<BR></A><BR> Argued for appellant.<span style= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/01opinions/01-5030.html">BOARD OF COUNTY SUPERVISORS OF PRINCE WILLIAM COUNTY, VIRGINIA V. U.S.<BR></A><BR> Argued for plaintiff appellee.<span style= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//apr96/94-8402.opa.html">HUGHEY V. JMS DEVEL. CORP.<BR></A><BR> This document was created from RTF source by rtftohtml version 2.7.5 > <title>Hughey v. INTRODUCTION<p> <p> Appellant JMS Development Corporation ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDAzLTkwMzggdyBFcnJhdGEucGRm/03-9038%20w%20Errata.pdf">OPINION/ORDER</A><BR> The areas to be inspected were a residential dock and adjacent areas located on tidal wetlands off the rear portion of Palmieri's backyard. Palmieri's claim is one essentially sounding in trespass quare clausum fregit that has escalated into a constitutional claim of Fourth Amendment violations only because the trespassers were representatives of a state government regulatory agency. Entry of these state actors was responsive to Palmieri's desire to obtain a necessary permit to conduct construction work on his property. That the agents were dispatched by Palmieri within minutes of their entry and that no damage was done might have justified the disposition of this case by application of the maxim de minimis non curat lex. Because of the 1 1 2 3 John Doe #1 is presumably the intern who accompanied Lynch on her inspection. We are constrained to undertake the more elaborate analysis that follows. The property is situated on Long Island's Great South Bay and encompasses both New York State regulated tidal wetlands and a regulated adjacent area. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199902/97-5301a.txt">OPINION/ORDER</A><BR> Michael was on the briefs. Wilner were on the brief. Malley were on the brief. They assert (1) that the Federal Highway Administration violated the Department of Transportation Act by failing to identify all the historic sites it was charged with protecting prior to its decision approving the route of the proposed highway and by erroneously con cluding that the highway would not </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2003/11/02-6167.htm">02-6167 -- RGS CONTRACTORS INC. V. GC BUILDERS INC. -- 11/04/2003<BR></A><BR> Appellant contractor maintained a builder's risk insurance policy through Kemper Insurance which premium was reimbursed by GC. Appellant is the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/03opinions/03-1349.html">VANDERLANDE INDUSTRIES NEDERLAND BV, ET AL. V. INTERNATIONAL TRADE COMMISSION, ET AL.<BR></A><BR> Argued for appellants.<span style='mso spacerun:yes'> </span>With him on the brief were <u>Art C. Argued for appellee.<span style='mso spacerun:yes'> </span>With him on the brief were <u>Lyn M. Argued for intervenors.<span style='mso spacerun:yes'> </span>With him on the brief was <u>Daniel Van Dyke</u>.<span style='mso spacerun:yes'> </span>Also on the brief were <u>V. DC.<span style='mso spacerun:yes'> </span>Of counsel were <u>Jerry B. Mso pagination:widow orphan no line numbers'><span style='mso tab count:1'> </span>Appellant Vanderlande Industries Nederland BV is a Netherlands corporation with its </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/june96/95-8572.opa.html">ALLGOOD ELECTRIC CO. V. MARTIN K. EBY CONSTR. CO.<BR></A><BR> This document was created from RTF source by rtftohtml version 2.7.5 > <title>Allgood Electric Co. v. After its work was completed. What appears to be photocopies of these documents.<p> The payment applications identified the project and were addressed to Eby. Each application specified that it was for work performed by Allgood for a certain period of time and stated that. Relinquish all claim or rights of lien which the undersign [sic] may now have upon the premises above described except for claims for right of lien for contract and/or change order work performed to extent [sic] that payment is being retained or will subsequently become due.<p> <p> (R1 35. Appeared on the applications.<p> The completion certificate made a part of the record by Eby was addressed to the Georgia State Financing and Investment Commission ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/sept96/95-6198.opa.html">REDWING CARRIERS, INC. V. SARALAND APTS.<BR></A><BR> This document was created from RTF source by rtftohtml version 2.7.5 > <title>Redwing Carriers. Redwing sued the Appellees claiming they are liable under the Comprehensive Environmental Response. (Saraland) Site is a 5.1 acre parcel of land located within the southern Alabama community of Saraland. Redwing was in the business of hauling materials used in construction and other industries. Trucks were cleaned out. The ground at the Site became contaminated with hazardous chemicals which have combined to form a black. Bolton were partners in Saraland Limited. Meador completed construction of the Saraland Apartments complex in May 1974.<p> Construction of the complex was subsidized by the United States Department of Housing and Urban Development (HUD) to provide low income housing. Marcrum denies Redwing's claim that the company is the daily. The complex's parking lot was repaved. Coit and Roar are responsible for managing the business of the Partnership. Meador were liable under </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/97/01/953412P.pdf">OPINION/ORDER</A><BR> United States District Judge for the Eastern District of Missouri. 1 Center had failed to show that there was no possibility that Amtrak would use the property in the future for a public use such as an intercity rail passenger station. Arguing that the district court We misinterpreted Missouri law and that the planned future use of property for public use is not a defense to condemnation for a present public use. conclude that Union Center cannot maintain a condemnation action against Amtrak because 45 U.S.C. § 545(d) (1994)2 constitutes an implied preemption of Missouri condemnation law. As Union Center failed to establish that its proposed use will not materially interfere with Amtrak's plan to use the property in the future for an intercity rail passenger station. Amtrak has leased portions of the property to The property is the post office for parking and temporary storage of mail trucks and trailers and to St. The Rail Passenger Service Act of 1970 was recodified at 49 U.S.C. § 24101 et seq. The parties agree that the former Title 45 controls this action because it was commenced before July 5. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/05A003BD077B852488256CC5005B10A1/$file/9770123.pdf?openelement">OPINION/ORDER</A><BR> A number of business transactions whose tax consequences are at issue here. When the NFL injunction was lifted in 1982. The Raiders were to repay the loan from 12 percent of the net receipts from the operation of luxury suites to be constructed by the Raiders at the LA Coliseum. The repayment was to begin in the third year of suite rentals. The loan was secured by the tobe constructed suites. The LAMCC Agreement was the result of arm's length bargaining between the Raiders and the LAMCC. Plans to construct the suites prior to the 1984 Summer Olympics were abandoned after the Los Angeles Olympic Committee voiced concerns over the timing of the construction. Was halted on February 18 of that year. The Raiders responded that they were willing and able to provide the required bonds. Construction never resumed and the suites were never completed. The lawsuit was settled on September 11. The Commissioner disallowed the Raiders' rent deductions because the rent was not currently payable and was part of the loan from the LAMCC. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/244F5B7AE8233DDA88256D6500800351/$file/0235635.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: The issue in this case is whether federal agencies adequately followed our environmental laws both procedurally and substantively in approving a road building project for Stimson Lumber Company ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/99opinions/99-5025.html">W. FRANK BOLING, ET AL V. USA<BR></A><BR> With him on the brief was <u>Carey T. Of counsel on the brief were <u>H.F. With him on the brief were <u>Lois J. </p> <p ALIGN= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/apr96/94-8402.opa.html">HUGHEY V. JMS DEVEL. CORP.<BR></A><BR> This document was created from RTF source by rtftohtml version 2.7.5 > <title>Hughey v. INTRODUCTION<p> <p> Appellant JMS Development Corporation ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="489"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199807/93-1515a.txt">OPINION/ORDER</A><BR> Were on the joint briefs. Were on the brief. Minesinger were on the brief for intervenor Mojave Pipeline Company. Senior Judge: Texaco Inc. and various other natural gas shippers that have firm transportation contracts with Mojave Pipeline Company (collectively </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="481"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200003/99-1010a.txt">OPINION/ORDER</A><BR> With him on the briefs were G. With her on the brief were Jay L. With her on the brief were Matthew Merrill Schreck. Most of whom are in the Midwest. Manta Ray is owned by affiliates of Shell Offshore. The proposed line was to run from Block 207 to an onshore station in Garden City. Required a comparative hearing because its application and the Nautilus application were mutually exclusive. Since it contended the capacity of the Manta Ray system was not sufficient to supply gas to both projects. The Commission denied ANR's motion for consolidation and a comparative hearing because in its view the two pro jects were not necessarily mutually exclusive and the public interest could best be served by allowing market forces to channel demand. At the same time it issued a preliminary determination that ANR's application was also in the public interest. Petitioner claims that the Commission was obliged under the Ashbacker doctrine to hold a comparative hearing before it granted the Nautilus certificate. Applies only if the certificates are. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="481"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDAyLTk1MDBhbV9vcG4ucGRm/02-9500am_opn.pdf">OPINION/ORDER</A><BR> Conclusively determined that no major source permit is required. The judge below held that federal judicial review is prohibited under the circumstances and dismissed the case for failure to state a cause of action. BACKGROUND Because the facts of the case are somewhat technical in nature and intimately intertwined with the Clean Air Act's specific provisions. It is necessary to first lay out its basic framework as it relates to this case. 1. National air quality standards are promulgated by the EPA. 42 U.S.C. § 7409. Whether new construction of polluting facilities is permitted in an area. What kind of controls are required. Depends on whether the area is below or above the standard for each pollutant. Shall be treated as a part of its design only if the limitation or the effect it would have on emissions is federally enforceable. 42 In turn. The District of Columbia Circuit held that this standard was unreasonable because it failed to include mechanisms that are practically effective. A proposed facility that is physically capable of emitting major levels of the relevant pollutants is to be considered a major emitting facility under the Act unless there are legally and practicably enforceable mechanisms in place to make certain that the emissions remain below the relevant levels. 2. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="481"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/01/04/001437P.pdf">OPINION/ORDER</A><BR> Identifying that the concrete problems in the parking lot were caused by: 1) insufficient subgrade support. Norwalk's cross petition alleged that B D Construction and the subcontractor were responsible 2 for the parking lot's design and for the addition of water to the mix at the time Norwalk supplied the concrete.1 Travelers denied the claim on the basis that there was no coverage under either policy. 500 and was dismissed with prejudice from the state court proceedings after incurring nearly $130. Arguing in support that the damage to the parking lot either was not covered or. Was excluded by the policies sued on. Travelers is obligated to defend and indemnify Norwalk for </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="481"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/5D977ACC79EDB86D882570F2007C9238/$file/0415625.pdf?openelement">OPINION/ORDER</A><BR> Construction financing was secured through a commitment from the Federal National Mortgage Association that included the Wellington Place project along with three other AHDC enterprises. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="481"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/98opinions/98-1048a.html">PANHANDLE EASTERN PIPE LINE COMPANY V. FERC<BR></A><BR> With </p> <p>him on the briefs were Merlin E. With him on </p> <p>the brief were Jay L. Winter was on the brief for intervenors River </p> <p>side Pipeline Company. Thompson </p> <p>were on the brief for amicus curiae Transcontinental Gas Pipe </p> <p>Line Corporation.</p> <p>Before: Silberman. 825 (1993) (refusing to require pipeline to construct </p> <p>mid point tap because requester was ". Criterion on the ground that it </p> <p>was ". Criterion on the ground that it was </p> <p>". Allow Panhandle to deny an inter </p> <p>connect to a future requester that would have received one </p> <p>under the similarly situated standard. Its policy of requiring the construction of </p> <p>interconnects only when requesters were similarly situated to </p> <p>parties whose requests had previously been granted. 81 </p> <p>F.E.R.C. at 62. There was no conflict or change. The requesting party </p> <p>[still would have] to meet numerous requirements. FERC's counsel agreed with </p> <p>Panhandle's contention that the pipeline would be required to </p> <p>construct a requested interconnect if the FERC modified </p> <p>criteria in the new tariff were met. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="481"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200006/99-1273a.txt">OPINION/ORDER</A><BR> With him on the briefs was Joseph E. With her on the brief were John H. The Project was harmful to the fish. FERC does not dispute that the study will cost Centralia up to $300. FERC has no meaningful hard evidence to prove that the hydroelectric project is harmful to fish. The petition for review is granted. Filed a complaint claiming that the Yelm Project was harming the fishery. Was required to file for a license. Not long after the settlement was signed. The Tribe submit ted a letter to Centralia stating that it did not believe that a tailrace barrier was either necessary or desirable. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="481"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2002/07/01-4082.htm">01-4082 -- CITIZENS' COMMITTEE TO SAVE OUR CANYONS V. U.S. FOREST SERVICE -- 07/23/2002<BR></A><BR> At issue is whether the Forest Service complied with the National Environmental Policy Act (NEPA). Both of these transactions occurred while Snowbird was undertaking operations to improve its resort capacity. <p> SOC alleges that the Forest Service's handling of these transactions was arbitrary and capricious in several respects. All parties agree that Snowbird is a ski resort of some significance. The resort itself is comprised of 881 acres of private land (called the Mineral Basin) and 1. Snowbird is required to submit periodically a master development plan outlining its long range plans for the resort and the public lands it utilizes. <p align= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="481"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/CF7CCDB0A79D0EF3882573330054DD2A/$file/0515189.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: These are consolidated appeals in two diversity actions brought under Nevada law. Where the meaning is not clear from the context. The dealership repays GMAC the portion of the loan attributable to an individual vehicle when that vehicle is sold or leased. GMAC enters into a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="481"></TD> <TD CLASS="swtitle"><A HREF="http://www.fedcir.gov/opinions/04-1220.pdf">OPINION/ORDER</A><BR> With him on the brief were Lewis R. Of counsel on the brief were William L. With him on the brief was Matthew J. Of counsel on the brief were Richard D. Most notably the drag forces experienced when the blade unit is moved over the skin. With the consequence that the overall performance of the blade unit [was] markedly inferior [compared to two bladed razors] despite a closer shave being obtained. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="481"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/01/03/994319P.pdf">OPINION/ORDER</A><BR> Claiming that TEI was in default of its contractual obligations. Which was incorporated by reference in National's bond. We agree with the district court there is no arbitration agreement between AgGrow and National mandating a stay under section 3 of the Federal Arbitration Act. Because arbitration of the underlying contract dispute between AgGrow and TEI is now pending. AgGrow was established in 1996 to construct and operate a plant to process oilseeds grown by farmer investors into edible and industrial oils. That the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="481"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/05a0137n-06.pdf">OPINION/ORDER</A><BR> Slim Fast argues that summary judgment is inappropriate because the contract at issue is ambiguous and because a reasonable person could conclude the defendant violated its professional duty. I This is a diversity case about the construction of a floor in Slim Fast's warehouse in Covington. That design was used to solicit bids from contractors. Linkous Construction Company ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="481"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199911/98-1048a.txt">OPINION/ORDER</A><BR> With him on the briefs were Merlin E. With him on the brief were Jay L. Winter was on the brief for intervenors River side Pipeline Company. Thompson were on the brief for amicus curiae Transcontinental Gas Pipe Line Corporation. 825 (1993) (refusing to require pipeline to construct mid point tap because requester was </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="481"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/992389A.P.pdf">OPINION/ORDER</A><BR> OPINION PER CURIAM: This case was argued before the en banc Court on February 27. (2) holding that the establishment of a magnet schools program was an ultra vires. King and Gregory in the affirmative) attorneys' fees for work done on the unitary status issue are denied. Nominal damages and attorneys' fees in that regard are denied. The injunction is vacated. The imposition of sanctions is affirmed. The judgment of the district court is therefore affirmed on the finding of unitary status and the imposition of sanctions. The judgment of the district court vacating and dissolving all prior injunctive orders and decrees is affirmed. The Board is to operate the school system without the strictures of these decrees no later than the 2002 2003 school year. Circuit Judge: This case is hopefully the final chapter in the saga of federal court control over the Charlotte Mecklenburg Schools ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="475"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/01opinions/01-1628.html">THOMAS E. WHITE V. EDSALL<BR></A><BR> Argued for appellee.<span style= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="475"></TD> <TD CLASS="swtitle"><A HREF="http://www.fedcir.gov/opinions/06-3238.pdf">OPINION/ORDER</A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="475"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200203/00-7279a.txt">OPINION/ORDER</A><BR> With him on the briefs were Alyza D. Baker were on the brief for appellee The Government of the United Arab Emirates. Concluding that District of Columbia law bars such claims by architects who (like Sturd za) have no D.C. architecture license. Concluding that foreign governments are not </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="475"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/00opinions/00-7279a.html">ELENA STURDZA V. UNITED ARAB EMIRATES<BR></A><BR> With him on the briefs were Alyza D. Baker were on the brief for appellee The Government of the United Arab Emirates. <span style= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="475"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/200411409.pdf">OPINION/ORDER</A><BR> Plaintiffs claim that all other developers that came before the Planning Commission had received approval and aver that Plaintiffs were treated differently by the City because of Mr. Filed a second amended complaint in which only the municipality of Rainbow City was named as a Defendant. The mayor and the Board of Adjustment were no longer parties to the litigation. 2 1 Defendant Rainbow City has appealed. Plaintiffs have not offered any evidence to support an equal protection claim of similarly situated individuals who were treated differently. The district court should have granted the City's Rule 50 motion. The order of the district court is reversed. It is directed to enter judgment for Defendant. Campbell ran for the office of Mayor of Rainbow City and was defeated by the incumbent. Campbell was critical of Glidewell and her policies. Mayor Glidewell is a voting member of both the City Council and the Planning Commission and appoints six of the other nine members to the Planning Commission. Because we conclude that the district court should have granted the City's Rule 50 motion. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="475"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/00opinions/00-7279b.html">ELENA STURDZA V. UNITED ARAB EMIRATES<BR></A><BR> With him on the briefs were Alyza D. Baker were on the brief for appellee The Government of the United Arab Emirates. <span style= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="475"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/022007.U.pdf">OPINION/ORDER</A><BR> Unpublished opinions are not binding precedent in this circuit. MINETA 3 have driveways accessing the highway. There are many school bus stops along the road. These deficiencies have resulted in unsafe driving conditions. Which are reflected in accident. The West Virginia Department of Transportation (WVDOT) determined that improvements to Route 9 were necessary and sought federal funding for this purpose. A Public Transit Alternative (making greater use of existing and potential public transLOS is a qualitative measure describing operational conditions within a stream of traffic and motorists' perception of those conditions. LOS is expressed in grades of </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="475"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/96opinions/96-1168.html">LOCKWOOD V. AMERICAN AIRLINES<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="475"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200203/00-7279b.txt">OPINION/ORDER</A><BR> With him on the briefs were Alyza D. Baker were on the brief for appellee The Government of the United Arab Emirates. Concluding that District of Columbia law bars such claims by architects who (like Sturd za) have no D.C. architecture license. Concluding that foreign governments are not </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="475"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2000/09/99-1147.htm">99-1147 -- ATLANTIC RICHFIELD COMPANY V. FARM CREDIT BANK OF WICHITA -- 09/13/2000<BR></A><BR> This process is commonly referred to as </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="469"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200101/99-1530a.txt">OPINION/ORDER</A><BR> With him on the briefs was Darin L. Yager were on the brief of amici curiae LPA. With her on the brief were Leonard R. Because we agree with the Board that the unions' activities were protected by the Na tional Labor Relations Act. Because the Board's finding that petitioner's lawsuit was both unmeritorious and retaliato ry is supported by substantial evidence. An internal union report explained: </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="469"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/01opinions/01-1152a.html">OPINION/ORDER</A><BR> Freeman was on brief. <span style= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="469"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/981804.P.pdf">OPINION/ORDER</A><BR> The district court found that the residents had failed to state a claim under the Fair Housing Act and that the rest of their claims were time barred. Appellants seek to derail this highway construction project years after the original siting decision was made. Most of their claims are 3 now stale. There is one exception: We reinstate as timely appellants' challenge to the agencies' decision not to prepare a supplemental environmental impact statement in 1995. We also hold that appellants' Title VI and section 1985 claims against the federal defendants are barred by sovereign immunity. Route 50 is the principal latitudinal artery spanning Maryland's eastern peninsula. Their remedy of choice was to construct a bypass around the City. In order to receive federal funding for the Bypass the Maryland State Highway Administration (SHA) was required to follow the approval process established under the Federal Aid Highway Act (FAHA). Although the details of this process have evolved since 1975. Its essential mandates have remained constant. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="469"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/98opinions/98-1160.html">PMC V. ITC<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="469"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca3.uscourts.gov/opinarch/044671np.pdf">OPINION/ORDER</A><BR> Glacial tills are extremely dense. P&G's general contractor for the warehouse was the Norwood Company. The ground in the vicinity of the construction site in Meshoppen was virgin ground. The topography of the warehouse site was not level. This was to be done by blasting the rock that was above grade and then using the blasted rock to fill in the areas that were below grade. A structure built on blasted till will sink into the fluffed ground. If a blasting hole is dug too deep. Overblasting will result and material that is to be left intact will be disturbed. Drilling subcontractors know whether they are drilling in dirt or rock by watching the hammer pressure gauge on the drill. After the blasting holes were dug. Work was progressing well until Austin Powder was discovered to be blasting supergrade dirt. If dirt was encountered above grade. It was to be removed without blasting. Subsurface settling was notice at an interior pier location and subsurface failure was noticed in wall foundation areas where footers had been poured. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="469"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/99opinions/99-1530a.html">PETROCHEM INSULATION, INC. V. NLRB<BR></A><BR> Marquess argued the cause for petitioner. </p> <p>With him on the briefs was Darin L. Yager were on the </p> <p>brief of amici curiae LPA. With her on the </p> <p>brief were Leonard R. Because we agree with the </p> <p>Board that the unions' activities were protected by the Na </p> <p>tional Labor Relations Act. Because the Board's finding </p> <p>that petitioner's lawsuit was both unmeritorious and retaliato </p> <p>ry is supported by substantial evidence. We have seen irresponsible companies build pro </p> <p> . </p> <p>jects which have caused more pollution than should be per </p> <p>mitted. We are now threatened with construction moratori </p> <p>ums in many counties in California.". Advocat </p> <p>ing regulatory action which will force construction companies </p> <p>to pay their employees a living wage. The unions </p> <p>are arguing [to local governments] that the economic rewards </p> <p>of development are lost when local people aren't hired at the </p> <p>prevailing wage. Were delaying and ". </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="469"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/July1994/94a0762p.txt">OPINION/ORDER</A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="463"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.villanova.edu/locator/3d/Nov2002/013077.pdf">OPINION/ORDER</A><BR> Congregation Kol Ami (the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=05-4193_019.pdf">OPINION/ORDER</A><BR> Facts Memorial is a hospital located in Belleville. It is licensed to provide health care services. The Medicaid program is a program jointly funded by the states and the federal government. It provides medical assistance to individuals and families whose resources are insufficient to meet the costs of necessary medical services. Ark. 2002) (noting that </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=05-3578_016.pdf">OPINION/ORDER</A><BR> Which is responsible for the fees. The CHA urges us to find that even if plaintiffs are entitled to some fees. We conclude that even if the link between these proceedings and earlier parts of the case is broken. All that is necessary is a summary of the history of the case. Claiming that its policies with respect to the selection of sites for public housing and for assignment of tenants were racially discriminatory. The district court entered a remedial decree that was designed to ban racially discriminatory site selection and tenant assignment policies and to undo the harm that had already occurred. Central to the remedial decree was the requirement that for every unit built in an area where the population was more than 30% non white ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/06/04/043910P.pdf">OPINION/ORDER</A><BR> The project will include land previously acquired by Jefferson City under the Stafford Act. That the Federal Emergency Management Agency ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/docs/common/opinions/200506/04-7059a.pdf">OPINION/ORDER</A><BR> On the brief was Phyllis J. On the brief was Matthew G. Circuit Judge: Plaintiff's notice of appeal in this case was premature. Filed while claims were still pending against one of three defendants. No new notice of appeal was filed. Here the nonfinal decision would have been appealable if followed by entry of judgment under Federal Rule of Civil Procedure 54(b). Accordingly we conclude that we have appellate jurisdiction. As each phase of the project was completed. Outlaw was a very hands on owner. Explaining it was bound contractually only to J.B. Informing the court that the notice of appeal had been filed and stating that </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/07a0011p-06.pdf">OPINION/ORDER</A><BR> Are Detroit area real estate developers who brought suit against Crosswinds Communities and its principal shareholder. Which was The Honorable James L. Finding that they had been prejudiced by unnecessary delay between the time the plaintiffs had learned that construction was planned (or. The time that construction was undertaken) and the time that the complaint was filed. Even though the action was filed within the three year statute of limitations provided by the Copyright Act in 17 U.S.C. § 507(b). The dispositive question is whether the equitable doctrine of laches can be held to trump the statutorily prescribed period for filing suit under § 507(b). To the extent that the plaintiffs in this case are seeking only monetary damages and injunctive relief. To the extent that the relief sought is destruction of the condominium complex that allegedly infringes the plaintiffs' copyright. The facts before us suggest that this is indeed the extraordinary case in which the defense of laches is properly interposed. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/011931.P.pdf">OPINION/ORDER</A><BR> Because TCP was not deprived of a property interest without due process of law. Because the County's actions were rationally related to a legitimate state interest. Leonard Jordan also informed the County Planner that TCP was applying to the North Carolina Department of Environment and Natural Resources ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/032305.P.pdf">OPINION/ORDER</A><BR> Laid out the lawyer's analysis concerning the dispute that was of common interest to USAID and to the project engineer. Hanson argued that the document was subject to FOIA disclosure. I. Appellee USAID is a federal agency that finances and oversees development projects in foreign countries under the government's foreign assistance program. One of USAID's projects was the construction of a system of water and sewage treatment facilities for the Aswan cities in Upper Egypt. Roy's contract provided that he was to provide a final report ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/67281897AF199DD98825721E005B6AE5/$file/0415746.pdf?openelement">OPINION/ORDER</A><BR> We have jurisdiction pursuant to 28 U.S.C. § 1291. I. Medicine Lake and the highlands surrounding it are of great spiritual significance to the Pit River Tribe and to the other Native American tribes in the region. Although the highlands are within the Pit River Tribe's ancestral homelands. They are not part of the tribe's reservation. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.fedcir.gov/opinions/05-1354.pdf">OPINION/ORDER</A><BR> With him on the brief were Jeffrey D. A view of this system is shown in Figure 7 of the '489 patent. Steelcase stipulated that it was liable for Office Details. The case was bifurcated against Office Concepts. The claims against Office Details and Office Concepts were therefore dismissed. The claim terms at issue in this appeal were construed in a Memorandum Opinion and Order of November 10. At issue in the '489 patent was a limitation related to keyboard position as highlighted in claim 1 below: 1. To prevent the keyboard from falling off when the keyboard is orientated in said backward tilted position. Such that said stop wall extends from said first side wall to said second side wall and wherein said stop wall is disposed in said rear portion of said support surface. Rosecrance was allowed to testify to his field of expertise. Was precluded from testifying as an expert regarding designs of keyboard support systems and the prior art at the time of the invention. At issue in the '231 patent was the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/04a0406p-06.pdf">OPINION/ORDER</A><BR> Concluding that GenCorp was a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/03a0395p-06.pdf">OPINION/ORDER</A><BR> The government argued that Cinemark was not complying with the applicable Justice Department regulation. The district court held as a matter of law that Cinemark was in compliance because its theaters provided wheelchair patrons with unobstructed views of the movie screen from wheelchair seating located amid or adjacent to The Honorable Gordon J. Sitting by designation. * The Department of Justice's enabling regulations under the Americans with Disabilities Act are the Am ericans with Disabilities Act Accessibility G uideline s. Stadium style theaters have a seating configuration that rises at a relatively steep grade. Wheelchair placements are generally located on a flat portion of the auditorium approximately one third of the way back from the screen. This placement is in the third row of fixed seating. Near the entrances and exits to the theaters.3 Wheelchair placements are also located on a flat portion in the rear of the auditorium in Cinemark's theaters that seat 300 or more people. These placements are accessed by elevators. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.villanova.edu/locator/3d/Mar2002/003625.txt">OPINION/ORDER</A><BR> Lapid's primary contentions on appeal are that: (1) because the Board failed to engage in the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200206/01-1152a.txt">OPINION/ORDER</A><BR> Freeman was on brief. Was on brief. That the Affirmation and Determination are arbitrary. Capri cious and otherwise unlawful and that the substantive find ings underlying them are unsupported by substantial evi dence in the administrative record. I. The following factual recitation is divided into two sec tions the first explaining the regulatory regime of the FAA and the second detailing how BFI's landfill proposal was (or was not) processed within that regime. The FAA is authorized to determine whether a proposed construction or alteration project will present a hazard to air navigation. Of a structure or sanitary landfill when the notice will promote ... (1) safety in air commerce. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/May1995/95a1059p.txt">OPINION/ORDER</A><BR> That the dispositive issue is whether. We will reverse and remand this action for yet another trial. Was approved by the Township and recorded in 1972. These improvements were substantially completed. This ordinance was amended on June 15. Township regulation of development and construction was expanded again on July 27. Included in this July ordinance was a Code Appeals Board to hear appeals from code violations. Until the industrial park was completed. Maintain that they were applying the local zoning and permitting regulations in a lawful and reasonable manner. An aspiring developer of a parcel of land was required first to obtain the Township's approval of the subdivision plan and then to acquire three permits. The first permit was a land alteration permit. All land alteration permits were approved by the Township Board of Supervisors. A developer was required to obtain a building permit by verifying that the building plans were in accord with applicable building codes. After the building was erected but before it could be occupied. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/00a0089p-06.pdf">OPINION/ORDER</A><BR> Order 8/17/98) ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca3.uscourts.gov/opinarch/041933np.pdf">OPINION/ORDER</A><BR> Which have been consolidated for appeal. We will affirm the District Court's grant of summary judgment to RCN and deny Fyrer's motion for attorney's fees. When the Agreement was signed. The first relevant milestone was detailed in ¶ 5(c) of the Agreement. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/99/06/986070P.pdf">OPINION/ORDER</A><BR> The bankruptcy court held the accounts receivable were not the equivalent of wages or salary and therefore were not exempt under the Nebraska statute. Pruss is an attorney engaged in the practice of law as a sole practitioner. The scheduled value of these receivables was $41. Her claim of exemption was. The Chapter 7 Trustee of two other bankruptcy estates which are creditors of Ms. The </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/019661EF3BAAF4C488256D1D00793D3A/$file/0115098o.pdf?openelement">OPINION/ORDER</A><BR> LOCKYER The full court was advised of the petition for rehearing en banc. The petition for rehearing en banc is denied. The right to keep and bear arms is in no way absolute. It is subject to reasonable restrictions such as those embedded in the statute the California legislature enacted. This case should have been reheard en banc. Dissenting from denial of rehearing en banc: Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held. We can be equally ingenious in burying language that is incontrovertibly there. It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution. The able judges of the panel majority are usually very sympathetic to individual rights. They have succumbed to the temptation to pick and choose. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca10.uscourts.gov/cgi-bin/getopn.pl?OPINION=04-6183.wpd">OPINION/ORDER</A><BR> Murphy cross appeals the determination that Murphy was not entitled to attorney's fees with regard to Trivental's counterclaims. This is addressed below. <hr> Background Murphy owns and operates gasoline service stations. Whereby Trivental was to perform work as the general contractor for the building of gasoline stations. Four of which were relevant to the litigation in this case. These counterclaims were submitted to the jury. The claims relating to the <hr> Tulsa and Hugo stations were decided under Oklahoma law. While the claim relating to the New Iberia station was decided under Louisiana law. See id. at 1634 ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/Nov1999/986484.txt">OPINION/ORDER</A><BR> 2) its decision is not supported by substantial evidence. We will affirm in part and reverse in part. I. Factual Background The parties have stipulated to the following facts. Are licensed by the Federal Communications Commission to provide wireless cellular telephone service to the Borough of Ho Ho Kus. Is licensed to provide wireless mobile radio services. Bell Atlantic and Nextel are referred to collectively throughout this opinion as the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199810/97-1274b.txt">OPINION/ORDER</A><BR> Nagin were on the briefs. Were on the brief. Jr. were on the brief for intervenor American Airlines. Were on the brief for intervenor Dade County Flori da. Salinger were on the brief for amicus curiae Airports Council International North America. 1997) [hereinafter </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA0LTMyODYtY3Zfb3BuLnBkZg==/04-3286-cv_opn.pdf">OPINION/ORDER</A><BR> The United States District Court for the Southern District of New York ruled on a motion for summary judgment that the Board's decision was unsupported by substantial evidence (as required by the TCA). Is suing the City of White Plains (the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA0LTMyODYtY3YgdyBFcnJhdGEucGRm/04-3286-cv%20w%20Errata.pdf">OPINION/ORDER</A><BR> The United States District Court for the Southern District of New York ruled on a motion for summary judgment that the Board's decision was unsupported by substantial evidence (as required by the TCA). Is suing the City of White Plains (the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=99-2221.01A">OPINION/ORDER</A><BR> Were on brief. Were on brief. Was the general contractor on the Project. Sheek worked during the day and was responsible for walking through the plant and reporting on the work being done by Asia Badger. Sheek also continued to identify punch list items which were passed on to the day shift. These items were addressed during the day. Mobil discovered that four xylene splitter pumps were operating at excessively high temperatures. Tests indicated that the piping was too small. The first was maintenance work. Some areas of the plant were shut down and cleaned.</FONT></P> <P><FONT FACE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=99-1538.01A">OPINION/ORDER</A><BR> P.C.</U> were on brief for Appellants.</FONT></P> <P><FONT FACE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6566B768B9F1E5E9882570CA00000E81/$file/0335924.pdf?openelement">OPINION/ORDER</A><BR> The Environmental Protection Agency ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199807/97-1274a.txt">OPINION/ORDER</A><BR> Nagin were on the briefs. Were on the brief. Jr. were on the brief for intervenor American Airlines. Were on the brief for intervenor Dade County Flori da. Salinger were on the brief for amicus curiae Airports Council International North America. 1997) [hereinafter </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca7.uscourts.gov/op/02/02-2889.PDF">OPINION/ORDER</A><BR> It held that the County's denial of VoiceStream's application was supported by substantial evidence and that VoiceStream had failed to demonstrate that the County's decision had the effect of prohibiting personal wireless services. Is a provider of personal communication services ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/Aug1996/96a1399p.txt">OPINION/ORDER</A><BR> We hold that the Secretary's interpretation was a permissible reading of an ambiguous statute and is properly accorded deference. We will therefore reverse the district court's decision and enter judgment for the Secretary. Much of the background to this dispute is described in New York v. Supreme Court held unconstitutional the LLRW Act's requirement that states which were not in compliance with the Act after January 1. The LLRW saga began in the 1970s when six commercial LLRW disposal sites were operating in the United States. The states where the three remaining facilities were located had announced plans to shut down or to severely limit access to their sites. Nuclear power plants would have nowhere to dispose of their waste. The new system of incentives and penalties was designed to spur construction. Any state without a facility could provide </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="457"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/012268.U.pdf">OPINION/ORDER</A><BR> Unpublished opinions are not binding precedent in this circuit. Purvis asserts that the defendants are responsible for wastewater permitting decisions that denied Purvis equal protection and deprived it of property without due process of law. LLC is a hog farming business located in Robbins. Obtaining an </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="446"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/93opinions/93-1299a.html">OIL CHEM & ATOMIC V. NLRB<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="446"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/D9DE22E2BB28AC4C88256AD400109090/$file/9956221.pdf?openelement">OPINION/ORDER</A><BR> Is hereby ordered amended as follows: 13903 Slip Op. at 10115: In the first sentence of the first paragraph. The United States argue that to the extent Title III of the ADA is ambiguous with regard to who can be liable for </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="446"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/BD2325FBED58F7A488256E7000781F25/$file/0210651.pdf?openelement">OPINION/ORDER</A><BR> Shipsey was originally indicted on December 31. Counts 21 and 22 were dismissed by the district court at the end of the government's case inchief. The district court declared a mistrial on the deadlocked counts and Shipsey was sentenced to 37 months' imprisonment. For failure to state an offense.1 It denied the motion as to the remain1 Counts 17 19 were dismissed because. Rejecting Shipsey's argument that the superseding counts were barred by the statute of limitations. He was sentenced to 30 months' imprisonment on each count. Shipsey is a land developer and building contractor. He was one of three general partners in Michael Shipsey and Associates ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="446"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/BBBA3E07A548B01B88256D57007097DA/$file/9915185.pdf?openelement">OPINION/ORDER</A><BR> Is amended as follows. The petition for rehearing is denied. There is not much dispute. Where there is. The facts are of course taken favorably to the verdict.3 On October 9. The driveway is sloped. The truck was parked on the slope pointing downhill. The Whites' three year old son Walter was playing outside. The Whites' theory of the case was that Walter pulled or kicked it out of first gear into neutral. The gearshift lever is a long stalk sticking up from the floor. So Walter may have been clambering after his lost piggy bank. The parking brake didn't hold the truck after it was shifted from first to neutral. The plaintiffs' theory of the case was that the parking brake let go despite being set. Ford knew the parking brake was prone to failure. He wouldn't have parked his truck on a slope. He would have brought the truck in immediately to be fixed. Ford offered alternative theories of how the accident could have occurred. One was that Mr. If this is how the accident occurred. That the parking brake sometimes allowed trucks to roll despite being engaged and that Ford should have warned its customers. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="446"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/AB314B86CCA3F50588256BAE00579F18/$file/0016874.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: The question in this case is whether the government is an intended beneficiary. Parties to surety contracts are free. We interpret the language of the contract in this case to have done so. Therefore hold that both the state and federal governments are intended beneficiaries of the surety contract to the extent of the subcontractor's past due tax obligations. 6554 ISLAND INSURANCE CO. v. Hawaiian was required by its contract with Oahu ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="446"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/89A87CAF2398CDE988256E5A00707CED/$file/9956221.pdf?openelement">OPINION/ORDER</A><BR> Is hereby ordered amended as follows: 13903 Slip Op. at 10115: In the first sentence of the first paragraph. The United States argue that to the extent Title III of the ADA is ambiguous with regard to who can be liable for </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="446"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/7190CBD2515404EF88256E91007C814A/$file/0210651.pdf?openelement">OPINION/ORDER</A><BR> Is amended as follows: (1) On slip opinion page 4660. Lines 21 23 are amended to read: </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="446"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/98/04/971852P.pdf">OPINION/ORDER</A><BR> Are assessed in light of the Forest Plan. The Plan was accompanied by an Environmental Impact Statement ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="446"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/06a0302p-06.pdf">OPINION/ORDER</A><BR> Where the cleanup costs were </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="446"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca3.uscourts.gov/opinarch/054521p.pdf">OPINION/ORDER</A><BR> This action was initiated by the Township of Piscataway and a group of homeowners to prevent Duke Energy Operating Company. The companies claimed that it was necessary to remove the trees for the safe inspection and maintenance of three high pressure. Because we conclude that there are genuine issues of material 2 fact as to (1) whether removal of the trees is reasonably necessary to the maintenance of the pipelines. (2) whether Duke and Texas Eastern are barred by the doctrine of laches from asserting a right to remove the trees pursuant to an easement grant. We will vacate the District Court's judgment and remand for further proceedings. The 1944 grant required Defense Plant: to bury such pipelines so that they will not interfere with the cultivation or drainage of the land. Are predecessors in title to the homeowners in this case. 3 1 third pipeline across the property. The 1960 grant imposed the following restrictions on the parties: The said Grantor is to fully use and enjoy the said premises. Or that will interfere with the construction. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="446"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.villanova.edu/locator/3d/Sept2002/004282.pdf">OPINION/ORDER</A><BR> The essence of Nextel's argument is that it is entitled to relief under the Federal Telecommunications Act of 1996. Because Nextel's claims are not yet ripe. A hearing before the Zoning Board was scheduled and interested property owners were given public notice. This testimony was in accordance with plans submitted to the Zoning Board (and placed on file with the City of Margate) by Nextel. Specifically referring to the equipment cabinet as eight feet by fourteen feet in its Resolution and stating that </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="446"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/docs/common/opinions/200701/06-5059a.pdf">OPINION/ORDER</A><BR> On the briefs was David G. With her on the brief was Todd S. With her on the brief were Harriet A. With him on the brief was D. Because appellants have produced no evidence of continuing TVA authority over the project. Adjacent to the site are several areas of historic significance. Other Reconstruction era African American communities that have applied for historic status. Or object that is included in or eligible for inclusion in the National Register. In response to which Karst filed an amended complaint adding allegations against all three and asking the court to </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="446"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/031510.U.pdf">OPINION/ORDER</A><BR> Unpublished opinions are not binding precedent in this circuit. Concluding that there was no coverage under the policy and that Travelers therefore had no duty to defend. Travelers funded Miller's defense in the underlying arbitration action.2 Travelers thereafter commenced this action seeking a declaration that it was not obligated under the policy to defend Miller against the claims asserted by PVC. [a]n insurer's duty to defend is ordinarily measured by the facts as alleged in the pleadings. Its duty to pay is measured by the facts ultimately determined at trial. When the pleadings state facts demonstrating that the alleged injury is covered by the policy. Whether or not the insured is ultimately liable. We are not. The facts as developed during discovery are also relevant to the duty to defend inquiry. App. 1990) ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="446"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/23BD0A16D9ED890A88256C840006015B/$file/9915185.pdf?openelement">OPINION/ORDER</A><BR> There is not much dispute. Where there is. The facts are of course taken favorably to the verdict.3 On October 9. The driveway is sloped. The truck was parked on the slope This decision had to await the Supreme Court's decision in Cooper Industries. The Whites' three year old son Walter was playing outside. The Whites' theory of the case was that Walter pulled or kicked it out of first gear into neutral. The gearshift lever is a long stalk sticking up from the floor. So Walter may have been clambering after his lost piggy bank. The parking brake didn't hold the truck after it was shifted from first to neutral. The plaintiffs' theory of the case was that the parking brake let go despite being set. Ford knew the parking brake was prone to failure. He wouldn't have parked his truck on a slope. He would have brought the truck in immediately to be fixed. FORD MOTOR CO. 7 Ford offered alternative theories of how the accident could have occurred. One was that Mr. If this is how the accident occurred. That the parking brake sometimes allowed trucks to roll despite being engaged and that Ford should have warned its customers. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="437"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/06a0464p-06.pdf">OPINION/ORDER</A><BR> That the portions of the Glass property covered by each conservation easement is a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="437"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.villanova.edu/locator/3d/Apr2002/002502.pdf">OPINION/ORDER</A><BR> I. NPI is participating in the creation of a national wireless network to provide </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="437"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/95opinions/95-5121.html">WELLS FARGO BANK V. U.S.<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="437"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/05a0154n-06.pdf">OPINION/ORDER</A><BR> Which is located on abutting property owned by defendant Central Florida Capital Enterprises. That amount was offset by an award of $1. Petersilie argues that the evidence was insufficient to establish liability to plaintiffs for outrageous conduct or to support the award of compensatory and punitive damages. I. All of the property at issue in this case was once part of a single tract of land owned by Betty Managoff located in Johnson County. A portion of that land was permanently flooded after the TVA constructed a dam across the Watauga River pursuant to a Flowage Easement dated March 11. Do such other work as is desirable in connection with the needs of navigation. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="437"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/184FC0DA9A357469882571B6007B7D6A/$file/0417118.pdf?openelement">OPINION/ORDER</A><BR> 2006 is hereby recalled. The request to publish the unpublished Memorandum disposition is granted. Is withdrawn and replaced with an opinion authored by Judge Hug. I. Factual and Procedural Background Pickern is a visually impaired and mobility impaired woman who depends on an electric wheelchair for transportation. Inc. operates the Store and the Siegmund Weinstock Family Trust is Pier 1's landlord. The Store is located at 1931 East 20th Street in Chico. California and is separated from 20th Street by a long strip of land that contains a public sidewalk and a ten foot wide grassy berm. The sidewalk is not within the boundary of the property owned by the Siegmund Weinstock Family Trust. It is undisputed that the City had exclusive control over the design and construction of the sidewalk. The Appellees responded that they were not obligated to build such a ramp because they did not own the property. Is not limited to </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="437"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/94opinions/94-7082a.html">HENDRY ANNE P. V. PELLAND FRANCIS J.<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="437"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/94opinions/94-1044a.html">ENV DEF FUND V. EPA<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="437"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/97/04/961028P.pdf">OPINION/ORDER</A><BR> 629 for damages resulting from the This award was less The contractor subcontractor's delayed and defective performance. than the contractor initially claimed as damages. 3 2. Was entitled to the full $352. The contractor claims that the subcontractor was not entitled to After the trial. The subcontractor claims that the magistrate judge erred by We reject this claim because the subcontractor fails to granting the surety attorneys' fees without determining whether the fees were reasonable. demonstrate that the magistrate judge abused his discretion. 7. 010 allegedly to protect itself from a potential claim for payment by one of the subcontractor's suppliers (Continental Steel & Conveyor Company). contractor believed the subcontractor did not pay the supplier. subcontract authorized the contractor to The The Retention is money withheld from payment until completion and acceptance of a construction project to insure that the subcontractor completes its work. 7 1 withhold payment until the subcontractor demonstrated that it paid all of its suppliers. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="437"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=01-2737.01A">OPINION/ORDER</A><BR> Ciandella</SPAN> were on brief. P.A.</SPAN> were on brief. The district court granted summary judgment in plaintiffs' favor on the ground that there was insufficient evidence to support the Town of Kingston's decision to deny plaintiffs' application to construct a tower. Arguing that the Town's rejection of the plaintiffs' application is supported by substantial evidence. Because we conclude that there was substantial evidence to support the Town's decision in the record. The Board rejected the plaintiffs' application on four grounds:</SPAN></P> <P><SPAN STYLE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="437"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/95opinions/95-1380.html">OPINION/ORDER</A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="437"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/05/05/033441P.pdf">OPINION/ORDER</A><BR> Was $2.2 million. The district court determined that the owner of the M/V Anne Holly and the employer of its crew were entitled to 1 The complete caption for these consolidated cases is available from the clerk's office. limit their liability to $2.2 million under the Limitation of Liability Act. The district court also determined that the captain of the M/V Anne Holly was competent in general but negligent in this instance and that the allisions resulted from his spontaneous navigational error. Was partially at fault due to its failure to shield or move the Admiral after repeated past allisions at the same location. Because Winterville was not an </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/Jan1995/94a0928p.txt">OPINION/ORDER</A><BR> Valhal and Sullivan have both filed appeals from the order of the district court denying Sullivan's motion for partial summary judgment and granting Valhal's motion for partial summary judgment. The district concluded that the disputed clause was part of the contract but that it violated public policy and was therefore unenforceable. We will reverse. I. Factual and Procedural Background Valhal is a New York corporation which specializes in the management and development of real estate. Is a Pennsylvania corporation specializing in architectural. A document entitled </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/nov2000/99-11917.man.html">J.A.M. BUILDERS V. HERMAN (11/22/2000, NO. 99-11917)<BR></A><BR> ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=97-1522.01A">OPINION/ORDER</A><BR> LLP were on brief for appellant. Were on brief for the United States. Parsons was convicted of one count of conspiracy to commit bank fraud. Was slated to do the construction. Financing was sought from First Service Bank for Savings. Some of this money was disbursed at once. Most was held back and payments were made over the succeeding months. These subsequent payments were partly based upon </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/02opinions/02-5024.html">ROBERT O. MUDGE V. U.S.<BR></A><BR> With him on the brief were <u>Gregory O Duden</u>. Argued for defendant appellee.<span style= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/04/04/031327P.pdf">OPINION/ORDER</A><BR> The individuals named who are affiliated with these agencies (collectively the appellees). Because construction on the interchange projects was completed while this appeal was pending. The 74th Street and 105th Street interchanges are both located along Interstate 80. The Mills Parkway interchange is located along Interstate 35. The FHWA was required by law to approve these changes. The 105th Street interchange was not included in the EA. The Jordan Creek development was contingent on the expansion of the above highway interchanges by the summer of 2002. While this appeal was pending. The appellees submitted an affidavit from the City's engineer that stated the work on the Mills Parkway interchange and the 74th Street interchange was completed. Both interchanges are now open to traffic. Sought declaratory relief that the EA was unlawful. They argue that there is no longer a case or controversy for which this court can provide relief. One Thousand Friends responds by insisting that they are asking for more than just injunctive relief and that the project. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/53EE1C88927D5D9D88256F23005032D0/$file/0335235.pdf?openelement">OPINION/ORDER</A><BR> Was arbitrary and capricious and contrary to law in violation of the Administrative Procedure Act (APA). The district court concluded that the 2001 ROD was not arbitrary and capricious or contrary to law. We have jurisdiction on appeal under 28 U.S.C. § 1291. The electric power generated by the Federal Columbia River Power System is marketed by the Bonneville Power Administration. The Lower Granite dam are on the lower Snake River1 in Washington state and are the subject of this The lower Snake River spans a 140 mile stretch of the Snake River. Each of these dams was built pursuant to Congressional mandate. For the four dams that are the subject of this lawsuit. No exemption was sought or received in this case. 4 The Washington State Department of Ecology has the authority to promulgate water quality standards to carry out the provisions of Chapter 90 of the Washington Revised Code. Of which certain portions thereof are within the jurisdictional limits of this state. No temperature increase will be allowed which will raise the receiving water temperature by greater than 0.3oC. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=03-2616.01A">OPINION/ORDER</A><BR> Georges</SPAN> was on the brief. Was on the brief for appellee United States. Were on the brief for appellee Commonwealth of Massachusetts. LLC</SPAN> was on the brief. Concluding that the plaintiffs' claims were barred by principles of res judicata and sovereign immunity. Other obstacles that were on the Brenemans' side of the property line. While their superior court case was pending. Complaining that they learned during discovery that the Airport's runway was longer than the length listed in the New York Section Chart for Pilots. While their permit application with MAC was still pending. Concluding that the FAA's fence study was purely advisory in nature and that the plaintiffs had not suffered any actual harm from its publication. Observing that MAC's denial of the Brenemans' hill permit was based in part on the FAA study. The court concluded that the study was committed to agency discretion and thus was unreviewable under the Administrative Procedure Act ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=99-1222.01A">OPINION/ORDER</A><BR> Proctor & Hoar LLP were on brief. With whom Laura Steinberg and Sullivan & Worcester LLP were on brief. Ropes & Gray were on brief. P.C. were on brief. We determine that Cablevision is unlikely. We further conclude that Cablevision is unlikely to prevail on its Chapter 93A claim in this action. I. FACTS The facts are largely taken from the opinion of the district court. These are undisputed. The few points of disagreement are noted. Because key aspects of this case involve changes that have occurred over time and actions that are alleged to have been untimely. The electricity and cable television businesses were once entirely distinct enterprises. Cablevision is equally well established in Boston as a provider of cable television. Although its two franchise agreements with the City have been non exclusive. Both Boston Edison and Cablevision have needed to install conduit under the streets of Boston. Which is the division of the City's Department of Public Works responsible for construction projects involving City streets. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/E10268DCF332E79588256B7400567EA0/$file/0017085.pdf?openelement">OPINION/ORDER</A><BR> What type of grievance was before the arbitrators and whether both grievances concerned the same dispute. We have jurisdiction. I The facts are undisputed. Inc. (the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.fedcir.gov/opinions/03-1395.pdf">OPINION/ORDER</A><BR> With her on the brief was Nels J. Of counsel on the brief was Daniel J. Of counsel were John B. With her on the brief was Kathryn E. The landowners appeal those aspects of the decision of the United States District Court for the District of Idaho as were decided adversely to their </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//nov2000/99-11917.man.html">J.A.M. BUILDERS V. HERMAN (11/22/2000, NO. 99-11917)<BR></A><BR> ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=91-2215.01A">OPINION/ORDER</A><BR> Were on brief. Were on joint brief for appellees United States Army Corps of Engineers and Massachusetts Water Resources Authority. 2 TORRUELLA. Found that the Corps' determinations under Section 404 were not arbitrary. Factual Background This appeal is an offspring of the colossal effort to clean up Boston Harbor. The MWRA was required. Eventually four technologies and ten potential sites were identified from a field of 299 sites. Additional evaluation was conducted to further screen the potential sites for detailed analysis. Such as cost and the extent to which potential communities were already hosting permanent wastewater treatment facilities. Four were further evaluated for sludge processing. While two sites Rowe Quarry and MCI Walpole were further evaluated for a landfill operation. To the east of the landfill site is the head of the Neponset Sole Source Aquifer.6 This sole source aquifer serves several wells that are the only source of drinking water to the residents of the Town of Walpole.7 EPA concluded that the nearest of these wells is located more than two miles from the landfill site and is separated from the landfill by soils of low permeability. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199802/96-1497a.txt">OPINION/ORDER</A><BR> Harrison were on the briefs. Wood were on the briefs. Were on the brief. Cheatham III were on the brief for intervenor Natural Gas Supply Association. Was on the brief for intervenor National Mining Association. Were on the brief for amici curiae New York. We invalidated the first set of these emission limits as exceed ing EPA's statutory authority.2 We are now presented with a challenge by a number of electric utilities and industry groups 3 to the next group of nitrogen oxides emission limits promulgated under the Act: a more stringent revision of the first set of emission limits and a new set of emission limits for a second group of boilers. Was Title IV. Which was designed to reduce the adverse effects of acid deposition (more com monly known as </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/june2002/00-15964.opn.html">AM. TOWER L.P. V. CITY OF HUNTSVILLE (6/25/2002, NO. 00-15964)<BR></A><BR> Chief Judge:</SPAN></P> <P><SPAN STYLE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDAzLTkwNjRfb3BuLnBkZg==/03-9064_opn.pdf">OPINION/ORDER</A><BR> Defendant insurer appeals the district court's determination that business interruption coverage for losses arising from the destruction of Duane Reade's store that was located in the World Trade Center would continue for the hypothesized time reasonably necessary for Duane Reade to rebuild its store at the store's former site and resume functionally equivalent operations. We hold that the coverage period is not tied to rebuilding the store at its former site and. A declaratory judgment that its recovery for business interruption losses caused by the store's destruction will continue until the entire WTC complex is rebuilt. Paul claims was reasonably necessary for Duane Reade to relocate its store to a new location and resume operations. Is AFFIRMED. BACKGROUND The relevant facts are straightforward and undisputed. Duane Reade was insured under a $150 million property insurance policy written by St. Or control </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//june2002/00-15964.opn.html">AM. TOWER L.P. V. CITY OF HUNTSVILLE (6/25/2002, NO. 00-15964)<BR></A><BR> Chief Judge:</SPAN></P> <P><SPAN STYLE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/200013811.opn.pdf">OPINION/ORDER</A><BR> Circuit Judge: These consolidated appeals arise from the district court's final judgment resolving a series of cases that were filed after a passenger train of the National Railroad Passenger Corporation ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//mar2002/00-13811.opn.html">NAT'L R.R. PASSENGER CORP. V. ROUNTREE TRANSP. AND RIGGING, INC.(3/26/2002, NO. 00-13811)<BR></A><BR> Circuit Judge:</SPAN></P> <P><SPAN STYLE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/mar2002/00-13811.opn.html">NAT'L R.R. PASSENGER CORP. V. ROUNTREE TRANSP. AND RIGGING, INC.(3/26/2002, NO. 00-13811)<BR></A><BR> Circuit Judge:</SPAN></P> <P><SPAN STYLE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="431"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/B05870C709ECC1EC88256EF40081A34C/$file/0235965.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: We must decide whether Indian tribes have sovereign immunity from an Idaho state tax on motor fuel delivered by non tribal distributors to tribally owned gas stations for sale on Indian reservations. The state is barred from re litigating the matter. We have jurisdiction under 28 U.S.C. § 1291. Substantially all proceeds from the state motor fuel tax are used for highway construction and maintenance. When such fuels are not for the exclusive use of the United States. (b) The officer in charge of such reservation shall. Or the District of Columbia within whose borders the reservation is located. Showing the amount of such motor fuel with respect to which taxes are payable under subsection (a) for the preceding month. 4 U.S.C. § 104 (emphasis added). The amended law declared that the legal incidence of the tax was not on the retailer. Was on the distributor. 2002 Idaho Sess. To expressly impose the legal incidence of motor fuels taxes upon the motor fuel distributor who receives (as </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/aug97/94-9105.opa.html">WILLIAMS V. DRESSER INDUS., INC.<BR></A><BR> This document was created from RTF source by rtftohtml version 2.7.5 > <title>Williams v. The appellees alleged that the joint venture was harmful to their business because customers feared that the Dresser product would become obsolete. That they would not have bought the distributorship had they known about the pending joint venture. BACKGROUND<p> <p> Dresser was primarily an oil service company that acquired International Harvester's construction equipment business in 1982. Was a lesser player in the heavy construction equipment industry which was dominated by other companies such as Caterpillar and Komatsu. Dresser was one of the companies having difficulty staying competitive in the industry. Joint ventures were increasingly common in the industry as the strategy for survival. The two companies signed a confidentiality agreement restricting information of the discussions about the potential joint venture to their senior executives.<p> The Williams were Georgia residents who were sophisticated business executives. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.villanova.edu/locator/3d/June2003/022194p2.pdf">OPINION/ORDER</A><BR> This matter is before us on a Petition for Rehearing filed by the Easttown Township Zoning Board ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca7.uscourts.gov/op/01/01-4030.PDF">OPINION/ORDER</A><BR> Is subdivided into numbered districts and subdistricts. A majority of Chicago land available for development is zoned R. Churches are permitted uses as of right in all R zones. Are termed Variations in the Nature of Special Uses ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/Jul1998/98a1908p.txt">OPINION/ORDER</A><BR> We have jurisdiction under 28 U.S.C. I. The underlying facts of this case are undisputed and are comprehensively set forth in the district court's published opinion. Is a wholly owned subsidiary of Dean Foods. Which was damaged as a result. There is no dispute that because Dean Dairy issued monitoring reports to Union Township on a monthly basis. The United States moved for and was granted summary judgment on the issue of Dean Dairy's liability for the CWA violations. The action against the Municipal Authority of Union Township was settled and therefore the Authority is not a party to this appeal. Its appeal is limited to the amount of the civil penalty imposed. The district court found these efforts were belated and ineffective. It was only the construction of a $865. Important to the issue before us is that Dean Dairy considered various options to meet its permit obligations but. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/FEAC71F3B6100023882569EA00621DD3/$file/9856940.pdf?openelement">OPINION/ORDER</A><BR> We hold that the appellants have standing to challenge the adequacy of the Navy's Environmental Impact Statement under NEPA. Have not established taxpayer standing sufficient to bring their state law claims in federal court. The Naval Station is located on Terminal Island in the Port of Long Beach. Several of the buildings on the Naval Station were designed by Los Angeles architect Paul R. At the time the complaint in this case was filed. Which is protected by the Migratory Bird Act of 1918 and has been classified by the California Department of Fish and Game as a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/200611070.pdf">OPINION/ORDER</A><BR> Finding that it was moot. Although the complaint of KH Outdoor is not moot because KH Outdoor requested damages for the alleged violation. The accompanying construction engineering drawings indicated that they were made for structures to be erected in Jacksonville. Alleging that Clay County's Old Sign Ordinance was an unconstitutional content based regulation of commercial and non commercial speech that violated the First and Fourteenth Amendments to the United States Constitution. The district court entered an order denying the motion finding that KH Outdoor had failed to show that it was substantially likely to prevail on the merits of its complaint. Ruled that the motions for summary judgment were moot. The district court found that there was no substantial likelihood of Clay County reenacting the Old Sign Ordinance and no bad faith on the part of Clay County. The provisions that actually caused the denial of the permits were: § 20.7 21(1) and (20) (prohibiting new billboards and off premise signs). Section 20.7 21(1) was preserved in the New Sign Ordinance. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//feb98/95-5405.man.html">UNITED STATES V. PIELAGO (2/17/1998, NO. 95-5405)<BR></A><BR> Circuit Judge:</P> <P> Appellants Maria Varona and Adrian Pielago were jointly indicted. She contends that the indictment against her should have been dismissed. We do not believe that there was any error involving the proffer agreement. We are convinced there was no plain error.</P> <P> Pielago challenges both his conviction and sentence. We find merit in his contention that his sentence is due to be reversed. Jose was arrested after surveillance indicated he was about to sell eight kilograms of cocaine that he had just received from Novaton to a drug dealer named </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/200414759.pdf">OPINION/ORDER</A><BR> The central issue in this case is whether a local zoning board improperly rejected the application of a wireless agent to build a cell phone site on a golf course within a residential community. The Village of Wellington is a municipal corporation and a residential community in Palm Beach County. Inc. is a Florida corporation that serves as an agent to various cellular phone service providers. These cellular sites are integral to the operation of Metro PCS' mobile phone service network. The success or failure of Metro PCS's mobile phone service network is directly tied to its ability to construct cell sites so that its customers are able to utilize their handsets. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/70EF41FD110D2EC388256E5A00707D54/$file/0070461.pdf?openelement">OPINION/ORDER</A><BR> The Tax Court held that Suzy's Zoo exercised such degree of control over the manufacturing of its products by third party contractors that it was a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca3.uscourts.gov/opinarch/061140p.pdf">OPINION/ORDER</A><BR> That the right to a jury trial on state law claims brought in federal court is governed by state. Marra and DiGravio had no right to have a jury decide their PHRA claims. Is responsible for developing and operating public housing in the City of Philadelphia. Edward Marra and Albert DiGravio were both employed in supervisory positions in the Inspections Division of PHA's 3 Design and Construction Department.1 DiGravio served as a Rehabilitation Supervisor. Marra's direct supervisor was Georgette Galbreth. Are recounted below. He was responsible for arranging and overseeing the inspection of houses that had been rehabilitated by PHA to ensure compliance with all pertinent housing codes. Among the several housing inspectors who worked under Marra were DiGravio. Formal notices of appointment were sent to both Paladino and Wright but later rescinded after George Fields. Although his salary and job duties were not materially affected by the demotion. Finding that PHA had discriminated against them in violation of Title VII and the PHRA.4 Fields and three other PHA employees (no one of whom is of particular relevance to our case) were also named as defendants. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/01806C39848D1FA588256D81005BE9FE/$file/0135554.pdf?openelement">OPINION/ORDER</A><BR> Where the vertical viewing angle was significantly sharper than in the rest of the theater. We have jurisdiction under 28 U.S.C. § 1291. The plaintiffs appellants in this case are three disabled. The defendants are Regal Cinemas. The purpose of the stadium design is to maximize unobstructed views for theater patrons. The first few rows at the front of the theater are set on a sloped floor. There is an aisle at the entry level of the theater separating the sloped portion of the seating from the riser section. The riser seats are not wheelchair accessible. Seating for disabled patrons is located only in the first five rows. 3 wheelchairaccessible seating is located only on the sloped portion of the floor. With over half The six theaters are the Movies on TV theater complex in Washington County. All six were designed and constructed for first occupancy after January 26. Are thus subject to the requirements of Title III of the A.D.A. for </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//jan98/96-2290.man.html">GJR INVESTMENTS, INC. V. COUNTY OF ESCAMBIA (1/5/1998, NO. 96-2290)<BR></A><BR> ALLEGATIONS OF THE COMPLAINT</CENTER> </P> <P> A complete copy of the complaint is made an appendix to this opinion. Inc. is a Texas corporation that is the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/200310480.pdf">OPINION/ORDER</A><BR> PER CURIAM: This is an appeal of the district court's denial of General Electric Company's Honorable John F. Although various arguments were presented by GE in favor of the motions below. Only three issues remain on appeal: 1) whether GE was entitled to a new trial because the district court's jury instruction on mitigation was inconsistent with Georgia law because it referenced Lowe's own internal policies. 2) whether GE was entitled to judgment as a matter of law with respect to the lost profit damages awarded by the jury because the completion of the Relocation Store would have required the purchase of the additional adjacent property. 3) whether GE was entitled to judgment as a matter of law with respect to the lost profit damages awarded by the jury because the profits from a new Relocation Store are too speculative. The parcel was located downhill from a GE plant. Lowe's current 5.8 acre parcel of land was not large enough to support the proposed Relocation Store. Lowe's determined that the best available site for the Relocation Store was near their existing store and entered into a 20 year lease agreement with Horne. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=93-2017.01A">OPINION/ORDER</A><BR> Rubenstein and American Civil Liberties Union Foundation were on brief for appellants. Alfaro was on brief for appellee Suarez. Were exempt from liability under the FHA by virtue of the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/04a0375p-06.pdf">OPINION/ORDER</A><BR> The issue is whether the district court erred in determining the amount of loss attributable to the defendant. Had a building on it which was destroyed by a storm in March 1997. Was granted. As is typical with construction loans. Advances of the loan proceeds were made during the course of the construction of the building at 2312 28th Street. The applications for progress payments were supported by invoices and payroll records and by the signature of Rothwell certifying that the submitted documents reflected expenses actually incurred in the effort to reconstruct the damaged property. At the time the building at 2312 28th Street was being reconstructed. At least a portion of the money advanced in reliance upon the false certification was used to build the property adjacent to 2312 28th Street. Rothwell claims that he ultimately replaced the funds that he fraudulently obtained from the SBA and that such funds were used in the construction of the building. He defaulted on the loan when he was unable to find tenants for the 2 buildings. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F1634974E811260988256B0A007A7D63/$file/0070461.pdf?openelement">OPINION/ORDER</A><BR> The Tax Court held that Suzy's Zoo exercised such degree of control over the manufacturing of its products by third party contractors that it was a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/199911917.OPN.pdf">OPINION/ORDER</A><BR> J.A.M. was a subcontractor at a construction site in Miami Beach. Where an ironworker was killed by electrocution. Arguing that the Commission's decision is not supported by substantial evidence and is not in accordance with the law. We review the Commission's findings of fact to determine whether they are supported by substantial evidence on the record as a whole. They are deemed conclusive. 2 See 29 U.S.C. § 660(a). </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/199911917.MAN.pdf">OPINION/ORDER</A><BR> J.A.M. was a subcontractor at a construction site in Miami Beach. Where an ironworker was killed by electrocution. Arguing that the Commission's decision is not supported by substantial evidence and is not in accordance with the law. We review the Commission's findings of fact to determine whether they are supported by substantial evidence on the record as a whole. They are deemed conclusive. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/19976365.OPN.pdf">OPINION/ORDER</A><BR> Ronald David Chandler was convicted of. Chandler was also convicted of engaging in a criminal enterprise. Which was imposed pursuant to his conviction for causing an intentional killing. In which Chandler stated that </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/19976365.MAN.pdf">OPINION/ORDER</A><BR> Ronald David Chandler was convicted of. Chandler was also convicted of engaging in a criminal enterprise. Which was imposed pursuant to his conviction for causing an intentional killing. In which Chandler stated that </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/19949105.OPA.pdf">OPINION/ORDER</A><BR> The appellees alleged that the joint venture was harmful to their business because customers feared that the Dresser product would become obsolete. That they would not have bought the distributorship had they known about the pending joint venture. I. BACKGROUND Dresser was primarily an oil service company that acquired International Harvester's construction equipment business in 1982. Was a lesser player in the heavy construction equipment industry which was dominated by other companies such as Caterpillar and Komatsu. Dresser was one of the companies having difficulty staying competitive in the industry. Joint ventures were increasingly common in the industry as the strategy for survival. The Williams were Georgia residents who were sophisticated business executives. The Tri State Tractor Company ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/06a0463p-06.pdf">OPINION/ORDER</A><BR> This case is the consolidation of two False Claims Act suits alleging fraud in the negotiation and execution of subcontracts relating to the construction of United States Navy Arleigh Burke class Guided Missile Destroyers. The destroyers are built primarily by two shipyards Bath Iron Works ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/jan98/96-2290.man.html">GJR INVESTMENTS, INC. V. COUNTY OF ESCAMBIA (1/5/1998, NO. 96-2290)<BR></A><BR> ALLEGATIONS OF THE COMPLAINT</CENTER> </P> <P> A complete copy of the complaint is made an appendix to this opinion. Inc. is a Texas corporation that is the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199903/97-7019a.txt">OPINION/ORDER</A><BR> With them on the briefs were Sally M. With them on the brief was Christopher L. To those claimants who have thus far not settled with the unions. Although we are reluctant to prolong this unduly protracted litigation any longer. I. Background The background of this case is set out in full in our prior opinion. Although referrals were available to non union </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//oct99/97-6365.man.html">CHANDLER V. UNITED STATES (10/29/1999, NO. 97-6365)<BR></A><BR> Ronald David Chandler was convicted of. In which Chandler stated that </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.fedcir.gov/opinions/04-5100.pdf">OPINION/ORDER</A><BR> With him on the brief was John S. Of counsel on the brief were James F. With her on the brief were Peter D. The United States is liable for the use of a method patent only when it practices every step of the claimed method in the United States. I. Zoltek Corporation ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//aug97/94-9105.opa.html">WILLIAMS V. DRESSER INDUS., INC.<BR></A><BR> This document was created from RTF source by rtftohtml version 2.7.5 > <title>Williams v. The appellees alleged that the joint venture was harmful to their business because customers feared that the Dresser product would become obsolete. That they would not have bought the distributorship had they known about the pending joint venture. BACKGROUND<p> <p> Dresser was primarily an oil service company that acquired International Harvester's construction equipment business in 1982. Was a lesser player in the heavy construction equipment industry which was dominated by other companies such as Caterpillar and Komatsu. Dresser was one of the companies having difficulty staying competitive in the industry. Joint ventures were increasingly common in the industry as the strategy for survival. The two companies signed a confidentiality agreement restricting information of the discussions about the potential joint venture to their senior executives.<p> The Williams were Georgia residents who were sophisticated business executives. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.fedcir.gov/opinions/05-5033.pdf">OPINION/ORDER</A><BR> With him on the brief was L. With him on the brief were Kelly A. With him on the brief were Robert M. That the United States was not liable to JRS&G under the Fifth Amendment to the Constitution for the alleged taking of JRS&G's leasehold interest in a 158 acre tract of land in Lapeer County. Which are not in dispute. Are set forth in John R. JRS&G is entitled to the exclusive use of the property for the purpose of mining sand and gravel. JRS&G's operations are principally located in its plant area in the eastcentral portion of the property. JRS&G's main sand and gravel pit ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/02/04/012738P.pdf">OPINION/ORDER</A><BR> Because it is owned by the government of the People's Republic of China. I A few words about the procedural posture of this case are appropriate at the outset of our discussion. Sopo moved to dismiss BP's action on several grounds soon after an amended complaint was filed in October 2000. So we will not delve into possible disputes of fact brought to our attention in the parties' appellate briefs. In the mid 1990s the amended complaint is not specific BP learned that Nooter Corporation in St. The district court reasoned Sopo was immune from suit in federal court under the FSIA and dismissed BP's action for lack of subject matter jurisdiction. Courts have distinguished between the public and private acts of government. Are not unique to government and could be performed by an individual. A nation is generally immune from suit in another nation's courts in matters arising from its public or sovereign acts. The FSIA endorsed this understanding of sovereign immunity: a foreign sovereign is presumptively immune from suit in federal court. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/07a0422n-06.pdf">OPINION/ORDER</A><BR> Sitting by designation. 1 by the Union against Zurn/N.E.P.C.O. ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/A737B5D02249680988256E5A00707A2B/$file/9856940.pdf?openelement">OPINION/ORDER</A><BR> We hold that the appellants have standing to challenge the adequacy of the Navy's Environmental Impact Statement under NEPA. Have not established taxpayer standing sufficient to bring their state law claims in federal court. The Naval Station is located on Terminal Island in the Port of Long Beach. Several of the buildings on the Naval Station were designed by Los Angeles architect Paul R. At the time the complaint in this case was filed. Which is protected by the Migratory Bird Act of 1918 and has been classified by the California Department of Fish and Game as a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/May1997/97a1572p.txt">OPINION/ORDER</A><BR> Circuit Judge: This case comes before us a second time for a determination whether New Jersey's regulation of the disposal of solid waste is constitutional under the Commerce Clause of the Constitution. Are Atlantic Coast Demolition & Recycling. The latter two plaintiffs are. The defendants are the New Jersey Department of Environmental Protection (NJDEP). The Carbone plaintiffs and the defendants have appealed the district court's decision. We will affirm the district court's findings that New Jersey's flow control laws and regulations are unconstitutional insofar as they discriminate against out of state waste processing facilities. We will not. We have jurisdiction under 28 U.S.C. 1291. I. FACTS As this nation's prosperity and consumption have increased over the years. States have attempted to meet those concerns by limiting or banning the importation of solid waste. States and municipalities have erected barriers to the exportation of solid waste in the hope that in state control of solid waste facilities will protect their communities from environmental harm. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/May1997/97a1599p.txt">OPINION/ORDER</A><BR> The claim of personal injury based on the plaintiff's fall on the path satisfies the jurisdictional facet of the Act and the judgment dismissing the complaint will be reversed. Was an employee of the Martin Marietta Company. Which was performing work for the Navy at the land base of the Underwater Tracking Range located on St. Plaintiff was walking from the upper portion of the facility to the lower sector to deliver material to an office trailer. 2 She and a co employee took the unpaved path that led directly to the trailer. The path was approximately fifteen to twenty feet in length and dropped downward at an angle of approximately fifty four degrees. There was no lighting in the area. Her complaint alleged that the government was negligent in failing to provide a stairway with handrails and for neglecting to provide sufficient lighting at the scene. Concluding that the government was protected by sovereign immunity because the conduct alleged came within the discretionary function exception to liability under the Federal Tort Claims Act. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca10.uscourts.gov/cgi-bin/getopn.pl?OPINION=02-7124.wpd">OPINION/ORDER</A><BR> The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent. The tower was to be used by U.S. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/992389.P.pdf">OPINION/ORDER</A><BR> As follows: On page 3 the list of amici curiae is corrected to read </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=96-1465.01A">OPINION/ORDER</A><BR> Nigaglioni and McConnell & Valdes were on brief for plaintiff. Ojeda Colon were on brief for defendants. Was on brief for appellee Insurance Company of North America. Gonzalez & Rodriguez were on brief for third party defendant. This breach of contract case is a product of the renovation and expansion of the Ambassador Plaza Hotel and Casino (formerly a Howard Johnson Hotel) in San Juan. Plaintiff appellant Taber Partners I is the owner of the hotel. Its two partners are A. Inc. was the general contractor. The </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=02-1452.01A">OPINION/ORDER</A><BR> P.C.</SPAN> were on brief for appellants and cross appellees</SPAN> <BR WP= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/991636.P.pdf">OPINION/ORDER</A><BR> Was denied. A. The relevant facts underlying this claim are undisputed and fully detailed in the district court's opinion. DRI's gross income from its electric utility business is a function of the electricity rates it charges its customers. Many public utilities have established similar reserve accounts to meet deferred income tax liability. They may have received similar compensation from the utility serving their new residence or business). The remittance was allocated on the basis of the 1991 customers' electricity use during the preceding 12 months. The issue here is whether DRI is entitled to invoke § 1341 to obtain from the government an additional $1.2 million deduction. It was determined that the taxpayer was not entitled to the income. His only option was to deduct the amount of that income in the year of repayment he could not recalculate his income for the year of receipt. § 1341 is designed to put the taxpayer in essentially the same position he would have been in had he never received the returned income. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/01opinions/01-1268.html">TRANSCLEAN CORPORATION, V. BRIDEGWOOD SERVICES<BR></A><BR> Argued for plaintiffs appellants.<span style= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/feb98/95-5405.man.html">UNITED STATES V. PIELAGO (2/17/1998, NO. 95-5405)<BR></A><BR> Circuit Judge:</P> <P> Appellants Maria Varona and Adrian Pielago were jointly indicted. She contends that the indictment against her should have been dismissed. We do not believe that there was any error involving the proffer agreement. We are convinced there was no plain error.</P> <P> Pielago challenges both his conviction and sentence. We find merit in his contention that his sentence is due to be reversed. Jose was arrested after surveillance indicated he was about to sell eight kilograms of cocaine that he had just received from Novaton to a drug dealer named </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca10.uscourts.gov/cgi-bin/getopn.pl?OPINION=05-7079.wpd">OPINION/ORDER</A><BR> Requires a plaintiff to prove that an allegedly </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/oct99/97-6365.man.html">CHANDLER V. UNITED STATES (10/29/1999, NO. 97-6365)<BR></A><BR> Ronald David Chandler was convicted of. In which Chandler stated that </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-4.gif" ALT="417"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/04/12/033801P.pdf">OPINION/ORDER</A><BR> A lawsuit3 was filed in state court against the Commissioners alleging violation of V.A.M.S. § 67.582. The policy was renewed through January 1. Knew or should have known. That expending the revenue from the ballot initiative to construct a new jail was improper. The suit was subsequently designated as a class action on behalf of Taxpayers. Adair County was dismissed by voluntary non suit. Discussion Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is properly granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Motions for summary judgment are reviewed de novo as to conclusions of law and for clear error as to factual findings. The interpretation of the terms of an insurance contract is a matter of state law. Which is reviewed de novo. App. 1983)(holding that a court must apply the construction most favorable to the insured when the policy is reasonably susceptible to two interpretations). The Missouri test for ambiguity is clear. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/011369.P.pdf">OPINION/ORDER</A><BR> Lines 5 6 and line 8 the references to the Ninth Circuit are corrected to read Second Circuit in the case of Davis v. A schematic building footprint is a drawing of a proposed building that shows the building shape in relation to the property on which it will be constructed and reflects the exterior elevations for the proposed building. 2 failed to execute this proposed agreement. While the Zoning Exception application was pending before the Zoning Board. It stated that: </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200006/97-1715a.txt">OPINION/ORDER</A><BR> With them on the briefs were William R. With them on the brief was Jay L. With him on the briefs were J. Open access is the essence of Orders 888 and 889. Open access transmission is expected to increase competition from alternative power suppliers. Are intended to create a market in which customers may purchase power from any of a number of suppliers. Will no longer have to purchase power from its local utility but instead may seek cheaper power anywhere in the country. All key players in the electricity market have challenged various provisions of Orders 888 and 889. Utili ties have been heavily regulated at both the federal and state levels. Economies of scale have justified the construction of large (greater than 500 MW) generation facilities. Techno logical advances in the 1970s and 1980s have permitted small plants to operate efficiently as well. These alternative suppliers have created a wholesale market for low cost power. They have and will continue to exercise that market power in order to maintain and increase market share. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/sept2002/01-11864.opn.html">UNIVERSITY COMMONS-URBANA, LTD. V. UNIVERSAL CONSTRUCTORS INC. (9/13/2002, NO. 01-11864)<BR></A><BR> One of the grounds of appellants' challenge is that a member of the arbitration panel was not impartial. We conclude that appellants' allegations of partiality are sufficient to warrant an evidentiary hearing. Sitting by designation.</SPAN><SPAN STYLE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=97-1577.01A">OPINION/ORDER</A><BR> Procter & Hoar LLP were on brief for appellant. DiBartolo and Cetrulo & Capone were on brief for appellant. (2) that Water Works did not have a sufficiently close relationship to Hyman to qualify for recovery under the Miller Act. The facts are largely undisputed. Hyman was the general contractor on a $70 million federal construction project to build a mail processing center in Waltham. Calvesco was working on at least three projects at that time. The credit application did not indicate whether it was for a particular project. Calvesco informed Hyman that it could not legally serve as subcontractor on the Post Office Project because it was a non union shop. The other two invoices remain unpaid and are the subject of this action. Hyman responded to Wernick's communications in writing on March 22 4 by indicating that it had turned the matter over to its attorneys and was not paying any claims until it had a clear picture of its options. The district court found that Calvesco and Jackson were separate corporate entities. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/991871.U.pdf">OPINION/ORDER</A><BR> Unpublished opinions are not binding precedent in this circuit. I. Pavilion Properties Limited Partnership was formed for the purpose of developing four. This total claim was comprised of various subclaims. The award was not itemized to indicate how much was attributable to each kind of damage claimed by Pavilion. The court reasoned that Pavilion's claim </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/991816.P.pdf">OPINION/ORDER</A><BR> While the court concluded that the Board's denial of the permit application was supported by substantial evidence a conclusion with which we agree it held that the denial of the permit had </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/00opinions/00-1533.html">VULCAN ENGINEERING CO., INC V. FATA ALUMINIUM, INC<BR></A><BR> Argued for defendants appellants.<span style= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA0LTQ4NjUtY3Zfb3BuLnBkZg==/04-4865-cv_opn.pdf">OPINION/ORDER</A><BR> Because the interests at stake in the litigation were not germane to the Trades Council's organizational purpose. The Trades Council lacked standing to assert its Clean Water Act claim because the alleged violation upon which the claim was premised had been rectified by the time the Trades Council filed its amended complaint. BACKGROUND The </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=93-1970.01A">OPINION/ORDER</A><BR> With whom Sulloway & Hollis was on brief for appellant Reliance Insurance Company and Morgan A. With whom Gottesman & Hollis was on brief for appellant H.J. P.A. was on brief for appellee. Held that the notice was timely and therefore granted judgment for plaintiff appellee Brox Industries in the amount of $178. Is the real party in interest. Under Stabile's contract with Wal Mart all work was to be completed on the project by December 3. Stated that the total amount of the paving work performed to date was $201. Which were contiguous to the planned store. Although the specifics are unclear. Or furnished the last of the materials for which said claim is made. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca3.uscourts.gov/opinarch/031434np.pdf">OPINION/ORDER</A><BR> We will affirm. Before closing a substantial portion of the schoolhouse was destroyed by a fire. We held The rather tortured history is taken from the parties' briefs. Beech Tree was incorporated on August 22. 1988 in the State of New York and was dissolved voluntarily on M ay 4. Dickler and Beech Tree discovered a previously undisclosed endorsement to the policy which provided for reconstruction costs if the proceeds were to be used to build another school. 1988 to [Machne Israel and Beth Rivka] as those proceeds have been determined or may be determined by the United States District Court for the Eastern District of Pennsylvania . . . and by the Third Circuit Court of Appeals . . . . The assignment was made subject to the terms and conditions of an Agreement executed on the same day as the assignment. Lewis Kates was the attorney for Dickler and Beech Tree. New York which is to be named and known as the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1819954AA8E290CA8825701A004C6819/$file/0356135.pdf?openelement">OPINION/ORDER</A><BR> The banners are located so that they are visible to customers of businesses that deal with certain contractors who do not have union contracts. While the banners are displayed. Local Union Number 1506 ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/031997.U.pdf">OPINION/ORDER</A><BR> Unpublished opinions are not binding precedent in this circuit. Which is in the business of designing and constructing industrial facilities. Austin was eventually awarded the Navy contract in June 2000 at a price of $18. Upon hearing rumors that Austin was soliciting other bids. The court concluded as a matter of law that the breach of contract claim was barred by the statute of frauds because Trident's alleged oral contract to supply and erect the airplane hangar for Austin constituted </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/200111864.opn.pdf">OPINION/ORDER</A><BR> One of the grounds of appellants' challenge is that a member of the arbitration panel was not impartial. We conclude that appellants' allegations of partiality are sufficient to warrant an evidentiary hearing. University Commons is an Illinois based limited partnership formed by Capstone Development. Some of Capstone's projects are developed </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/99opinions/99-5105.html">PUEBLO OF SANTA ANA V. U.S.<BR></A><BR> With him on the brief was <U>Lois J. ) have resided in what is now known as Sandoval County. The Jemez Dam was constructed in the early 1950s. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA0LTQ4NjUtY3YgdyBFcnJhdGEucGRm/04-4865-cv%20w%20Errata.pdf">OPINION/ORDER</A><BR> Because the interests at stake in the litigation were not germane to the Trades Council's organizational purpose. The Trades Council lacked standing to assert its Clean Water Act claim because the alleged violation upon which the claim was premised had been rectified by the time the Trades Council filed its amended complaint. BACKGROUND The </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2001/04/00-8024.htm">00-8024 -- ST. PAUL FIRE AND MARINE INSURANCE CO. V. CITY OF GREEN RIVER WYOMING -- 04/13/2001<BR></A><BR> We affirm substantially for the reasons stated by the district court. <p> This is a dispute arising from a $28.6 million public construction project gone bad. 1998 and included a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/03/09/021673P.pdf">OPINION/ORDER</A><BR> I Oti Kaga is a non profit corporation established by the Cheyenne River Sioux Tribal government pursuant to the United States Housing Act of 1937. Oti Kaga's purpose is to acquire. SDHDA is an independent public instrumentality exercising essential public functions under S.D. SDHDA is responsible for. Thomas Schramm and Leland Kleinsasser are members of SDHDA's Board of Commissioners. Appellee Darlys Baum is SDHDA's Executive Director. Baum and the board members were sued individually and in their official capacities. Is authorized by IRC § 42. State housing agencies are responsible for allocating tax credits for the construction of low income housing. The annual plan must be prepared by the state's housing agency and approved by the governmental unit of which the agency is a part. SDHDA is the authorized housing agency for South Dakota. The second program at issue is the HOME Program. Indian tribes were participating jurisdictions in the HOME Program. 42 U.S.C. § 12747(a)(2). Indian housing assistance was funded directly through Indian Housing Block Grants (IHBG). </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/2BFBC6088AF13AA98825718000723C79/$file/0374628.pdf?openelement">OPINION/ORDER</A><BR> The United States Nuclear Regulatory Commission ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=96-1435.01A">OPINION/ORDER</A><BR> Inc. were on brief. Were on brief. Because Chevron is still the law of the land. The Act is designed </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/96opinions/96-5086.html">BAYOU V. U.S.<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/99/02/973900P.pdf">OPINION/ORDER</A><BR> They learned that the DeRuyter hardware store in Sioux Center was for sale. The DeRuyter building was scheduled to be torn down to make room for the parking area of a new mall planned by the City3 and Mr. DeRuyter was going to retire. The City of Sioux Center is not only the owner of the mall. Was the general contractor for the project as well. 23 2 In 1990. The DeJongs were given a promotional pamphlet stating that the mall would open in the spring of 1991. The DeJongs were also told that the opening date had been set for July 1991. He stated that there was a significant loyalty to downtown merchants. Which was on the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/01opinions/01-1452.html">CFMT, INC. AND CFM TECHNOLOGIES, INC V. YIELDUP<BR></A><BR> Argued for plaintiffs appellants.<span style='mso spacerun:yes'> </span>With him on the br </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2002/08/99-4210.htm">99-4210 -- U.S. V. HARDMAN -- 08/05/2002<BR></A><BR> Jr. were convicted for unrelated counts of illegally possessing eagle feathers in violation of sections 703 and 668(a) of Title 16 of the United States Code. Was not criminally prosecuted.<a href= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//sept2002/01-11864.opn.html">UNIVERSITY COMMONS-URBANA, LTD. V. UNIVERSAL CONSTRUCTORS INC. (9/13/2002, NO. 01-11864)<BR></A><BR> One of the grounds of appellants' challenge is that a member of the arbitration panel was not impartial. We conclude that appellants' allegations of partiality are sufficient to warrant an evidentiary hearing. Sitting by designation.</SPAN><SPAN STYLE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=91-1053.01A">OPINION/ORDER</A><BR> Was on brief for appellant Superior Court of Puerto Rico for the District of Arecibo. Bonnet Rosario was on brief for appellants Rivera Santos. William Ramirez Hernandez with whom Nora Vargas Acosta was on brief for plaintiffs. Jeanne Finberg and National Senior Citizens Law Center were on brief for intervenors appellees. The Superior Court judgment was based on a determination that Casa Marie was operating in violation of local zoning ordinances and JDA restrictive covenants. A. The Opening and Expansion of Casa Marie The Jardines de Arecibo housing development was established in 1967. Each property in the development is subject to restrictive 3 covenants allowing only detached single family residences. Was established by Maria Pla Placencio on a dead end street in a section of JDA zoned residential (R 3). Elder care facilities are not allowed except as a variance. Casa Marie was granted a six month provisional DSS license to operate an elder care facility on Lots 19 and 20. Casa Marie was denied a permanent DSS license due in part to the discovery that the A.R.P.E. 1As these endorsements were not seriously at issue. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.villanova.edu/locator/3d/September2004/031434np.pdf">OPINION/ORDER</A><BR> We will affirm. Before closing a substantial portion of the schoolhouse was destroyed by a fire. We held The rather tortured history is taken from the parties' briefs. Beech Tree was incorporated on August 22. 1988 in the State of New York and was dissolved voluntarily on M ay 4. Dickler and Beech Tree discovered a previously undisclosed endorsement to the policy which provided for reconstruction costs if the proceeds were to be used to build another school. 1988 to [Machne Israel and Beth Rivka] as those proceeds have been determined or may be determined by the United States District Court for the Eastern District of Pennsylvania . . . and by the Third Circuit Court of Appeals . . . . The assignment was made subject to the terms and conditions of an Agreement executed on the same day as the assignment. Lewis Kates was the attorney for Dickler and Beech Tree. New York which is to be named and known as the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/031448.P.pdf">OPINION/ORDER</A><BR> It is now before us for the second time after a remand by the Supreme Court. The main question today is this: whether a federal court has jurisdiction over a local carrier's claim that a state utility commission misinterpreted interconnection agreement provisions on reciprocal compensation that are based on federal law. We hold that there is federal question jurisdiction under 28 U.S.C. § 1331. That the action was not filed on a timely basis. The case will be remanded for further proceedings on the incumbent local carrier's contract misinterpretation claim. Telephone service in a local calling area was provided by a single local exchange carrier (local carrier). The duty to interconnect is coupled with other duties set forth in § 251. When the direction is reversed. The terms under which two competing local carriers interconnect their networks and provide for reciprocal compensation are set forth VERIZON MARYLAND v. Inc.) was providing local telephone service in Maryland. (We will refer to MFS Intelenet in the name of its successor. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/5E1AF153144E0AD988257187007B96C2/$file/0371066.pdf?openelement">OPINION/ORDER</A><BR> Petition for review of a Board of Immigration Appeals (BIA) decision that denied them asylum on the ground that they were firmly resettled in Canada after fleeing persecution in Fiji and before arriving in the United States. The Attorney General is precluded from granting asylum to an alien who was </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/200511153.pdf">OPINION/ORDER</A><BR> Pro arbitration policy are </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200011/97-1715b.txt">OPINION/ORDER</A><BR> With them on the briefs were William R. With them on the brief was Jay L. With him on the briefs were J. Open access is the essence of Orders 888 and 889. Open access transmission is expected to increase competition from alternative power suppliers. Are intended to create a market in which customers may purchase power from any of a number of suppliers. Will no longer have to purchase power from its local utility but instead may seek cheaper power anywhere in the country. All key players in the electricity market have challenged various provisions of Orders 888 and 889. Utili ties have been heavily regulated at both the federal and state levels. Economies of scale have justified the construction of large (greater than 500 MW) generation facilities. Techno logical advances in the 1970s and 1980s have permitted small plants to operate efficiently as well. These alternative suppliers have created a wholesale market for low cost power. They have and will continue to exercise that market power in order to maintain and increase market share. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/1998/11/97-3240.htm">97-3240 -- ROSS V. FEDERAL HIGHWAY ADMINISTRATION -- 11/17/1998<BR></A><BR> Was a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200007/99-1129a.txt">OPINION/ORDER</A><BR> With her on the briefs was Craig M. With him on the brief were David W. An imagi nary surface is essentially an artificial engineering boundary </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.villanova.edu/locator/3d/Jan2002/011717.txt">OPINION/ORDER</A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/98opinions/98-7063a.html">CREIGHTON LTD V. GOVT ST QATAR<BR></A><BR> Qatar was to pay Creighton in Qatar. <p> and in fact all payments were made there in Qatari riyals. <p> The contract provided that it was to be performed and <p> interpreted under Qatari law and that all disputes were to </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="ftp://opinions.ca5.uscourts.gov/byDate/Sep2004/Sep21/03-61028-CV0.wpd.pdf">OPINION/ORDER</A><BR> Was seriously injured during the construction project. Reasoning that Tarver's injury did not occur on a situs that is covered by the LHWCA. We must uphold BRB decisions that are supported by substantial evidence and are in accordance with the law. The BRB's legal determinations are reviewed de novo. Tarver contends that he is entitled to relief under § 903(a) because the Bo Mac construction site would. Such a claim is without merit. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=06-1909_017.pdf">OPINION/ORDER</A><BR> Miller when the truck he was driving was struck by an Amtrak train at a crossing. Amtrak was one of the defendants and exercised its right to remove the case to federal district court. The parties have assumed that Illinois law remains applicable to the plaintiffs' claim against Amtrak (as well as. We think the assumption is correct. Although Amtrak's right to remove is based on its being deemed an instrument of the federal government because more than 50 percent of its stock is owned by the United States. Nowhere is there any indication that Congress wanted victims of Amtrak accidents to have any rights other than those conferred on victims of railroad accidents by state law. If the source of a plaintiff's claim is state law. Otherwise the federal courts would have to make up a common law of railroad accidents. This concern is underscored by the fact that Amtrak is merely one of several defendants in this Nos. 06 1909. 06 1910 3 case and that the others are in federal court only (so far as appears) by virtue of the federal district court's supplemental jurisdiction. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=03-1248.01A">OPINION/ORDER</A><BR> Were on brief for appellant. <BR WP= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="399"></TD> <TD CLASS="swtitle"><A HREF="ftp://opinions.ca5.uscourts.gov/unpub/02/02-30798.0.wpd.pdf">OPINION/ORDER</A><BR> The Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. In the event that completion of the barge was delayed. A number of disputes arose between Cashman and Acadian and the barge was not delivered until approximately one year after the original completion date. An arbitrator was appointed to settle the parties' disputes over nonpayment and delay damages. The arbitration award was issued in which Cashman was awarded $85. Before the award was issued Cashman filed the instant suit seeking reformation of the contract and resci ssion of the liquidated damages provision. The district court concluded that the lawsuit was not barred by res judicata based on the arbitration proceeding because Cashman's reformation claim could not have been adjudicated in the arbitration proceeding. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//july2000/97-6365.ma3.html">CHANDLER V. UNITED STATES (7/21/2000, NO. 97-6365)<BR></A><BR> Was sentenced to death for murder in furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e)(1)(A). Jarrell has said he thought Petitioner was joking. Petitioner warned Jarrell that Shuler was going to cause them trouble and stated: </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/19976365.MA3.pdf">OPINION/ORDER</A><BR> Was sentenced to death for murder in furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e)(1)(A). Jarrell has said he thought Petitioner was joking. Petitioner warned Jarrell that Shuler was going to cause them trouble and stated: </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/96opinions/96-1066.html">HESS V. ADVANCED CARDIOVASCULAR<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/C72B8570A5CAE2CA88256BE6004EB1F1/$file/0055027.pdf?openelement">OPINION/ORDER</A><BR> Is withdrawn and replaced by the attached opinion. The Oil Companies' petition for rehearing and petition for rehearing en banc are DENIED. Is also DENIED. Circuit Judge: We are asked to decide who must pay for cleaning up the McColl Superfund Site in Fullerton. The site was contaminated with hazardous waste associated with the production of aviation fuel during World War II. Contending that the United States was liable for cleanup costs. The district court held that the Oil Companies were liable as </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/docs/common/opinions/200411/03-1295a.pdf">OPINION/ORDER</A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/06a0320n-06.pdf">OPINION/ORDER</A><BR> The Board found that Greer and Associates is the alter ego of Crossroads and that both entities unlawfully refused to give effect to the collective bargaining agreement that existed between Crossroads and the International Brotherhood of Electrical Workers. Greer and Associates argues that enforcement is unwarranted because either the Union failed to file its charge against Crossroads and Greer and 1 Associates within the applicable statute of limitations or. Assuming the charge was timely. Substantial evidence did not support the Board's determination that Greer and Associates is an alter ego of Crossroads. Which was formed in 1997. Is an electrical contracting company. Crossroads was initially owned and operated by three individuals: Micheal Thomas ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/1999/05/97-4116.htm">97-4116 -- HARDMAN V. SPECIALTY SERVICES -- 05/14/1999<BR></A><BR> The district court granted summary judgment to SKK on the ground that SKK was a special employer under the loaned employee doctrine. Hence was immune from suit under the Utah Workers' Compensation Act ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=92-1335.01A">OPINION/ORDER</A><BR> Meyer & Soloman were on brief for Conservation Law Foundation. P.A. were on brief for Town of Newington. Were on brief for the federal parties. Were on brief for State of New Hampshire and Pease Development Authority. Senior District Judge. whether defendants have complied with various federal environmental laws that apply to the conversion of land on Pease Air Force Base (Pease) in New Hampshire to civilian use incident to the base's closure. Several other interested parties have intervened and. Plaintiffs have appealed from the dismissal of their CAA claims and the denial of injunctive relief. The federal defendants have cross appealed from the finding that they violated CERCLA. Have not appealed the district court's order directing them to prepare a Supplemental FEIS. We have appellate jurisdiction under 28 U.S.C. 1291. Also before us are petitions filed by CLF and Newington to review an order of the Federal Aviation Administration (FAA) approving PDA's airport development plan. We have jurisdiction under 49 U.S.C. app. 1486(a) and deny the petitions with respect to the CAA claim and retain jurisdiction of the NEPA claim pending completion of the Supplemental FEIS. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=05-4418_039.pdf">OPINION/ORDER</A><BR> That person will immediately think of Chicago's O'Hare International Airport. It is one of the busiest airports in the world: in 2005. It is also of central importance to the economy of Chicago and Northern Illinois. Its claims against the Federal Aviation Administration (FAA) were resolved in the FAA's favor by the court of appeals for the District of Columbia Circuit in Village of Bensenville v. By approving the City's plan and determining that the plan was eligible for federal funding. Which is owned by the City. Was prepared and will be implemented by the City. Which is prepared to proceed without federal funds if necessary. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/01opinions/01-1247a.html">KING CURB V. NLRB<BR></A><BR> Argued the cause for respondent.<span style= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/01/03/994263P.pdf">OPINION/ORDER</A><BR> Circuit Judge. 3 This case arises out of the five state Central Interstate Low Level Radioactive Waste Compact (the Compact) and was last before the court on Nebraska's appeal from a preliminary injunction in favor of the Central Interstate Low Level Radioactive Waste Commission (the Commission). 1863 (1986) (reprinting the Compact which is cited in this opinion by article). The state selected to host a disposal facility is 4 required </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/94opinions/94-5254a.html">CITYFED FINCL CORP V. OTS<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/971865.U.pdf">OPINION/ORDER</A><BR> No. 97 1865 Unpublished opinions are not binding precedent in this circuit. Elliott explained: </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/july2000/97-6365.ma3.html">CHANDLER V. UNITED STATES (7/21/2000, NO. 97-6365)<BR></A><BR> Was sentenced to death for murder in furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e)(1)(A). Jarrell has said he thought Petitioner was joking. Petitioner warned Jarrell that Shuler was going to cause them trouble and stated: </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=92-1312.01A">OPINION/ORDER</A><BR> Willard & Redding was on brief for appellants. Were on joint brief of appellees. Were on joint brief of appellees. Although it appears that the Federal Highway Administration is ultimately responsible for the preparation of the final EIS. All of the defendant agencies were involved in the preparation of the EIS. We will refer to the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/93opinions/93-5067.html">PRESEAULT V. U.S.<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/Dec1994/94a0910p.txt">OPINION/ORDER</A><BR> We will vacate the Order of the district court and we will remand the matter for further proceedings. I. Introduction and Factual Background[fn1] AT&T is a long distance telecommunications carrier that. Its rates and practices are governed by tariffs it files with the Federal Communications Commission. Only the reseller is a customer of AT&T. The end users are customers of the reseller and not of AT&T. Appellee Winback is a reseller of 800 inbound telecommunications services and appellee Inga is its president. Hereafter we usually will refer to both simply as Winback. As are other resellers. Winback is both a customer and a competitor of AT&T. Was infringing on AT&T's trademarks and service marks. Falsely representing that it was affiliated with AT&T and passing itself off as AT&T.[fn3] The parties resolved the case by entering into a Consent Final Order and Injunction. Were responsible for any infringing acts.[fn5] Consequently. The Final Order and Injunction was amended to obligate One Stop to serve each of its sales agents with a copy of the Order. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=01-2251.01A">OPINION/ORDER</A><BR> LLP</SPAN> were on brief for appellant.</SPAN></P> <BR WP= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/05/08/042707P.pdf">OPINION/ORDER</A><BR> The deadline for motions to amend the complaint was December 1. For nondispositive motions was January 6. Summary judgment is appropriate only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. The Barstads assert that they were denied equal protection of the law because Onken and the County denied them some Planned Unit Development (PUD) approvals and Conditional Use Permits (CUPs). The purpose of a class of one claim is </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/19976365.OP2.pdf">OPINION/ORDER</A><BR> Was sentenced to death for murder in furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e)(1)(A). Jarrell has said he thought Petitioner was joking. Petitioner warned Jarrell that Shuler was going to cause them trouble and stated: </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="388"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/64C37FB597BF2F848825729C0058BFE8/$file/0615371.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: The San Francisco Peaks in the Coconino National Forest in northern Arizona have long standing religious significance to numerous Indian tribes of the American Southwest. The Arizona Snowbowl is a ski area on Humphrey's Peak. Plaintiffs appellants are the Navajo Nation. Defendantsappellees are the United States Forest Service. Humphrey's Peak is the highest point in the state. The Peaks are located within the 1.8 million acres of the Coconino National Forest. A traditional cultural property is one </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6549F0880EFB1E1688257082008009BA/$file/0317224.pdf?openelement">OPINION/ORDER</A><BR> Including conditions allowing construction of the pier only if an appropriate court determines that: (1) the pier </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/200313526.pdf">OPINION/ORDER</A><BR> After finding that Jones was totally disabled by pneumoconiosis or black lung disease1 that developed as a result of his work in the coal mines of Alabama. Steel says that the ALJ used the wrong legal standard in evaluating whether there was a material change in Jones's condition. We are persuaded by neither argument and. Essential background and developed facts are straightforward. The Secretary of Labor's black lung benefits program allows coal The BLBA provides </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/200015936.pdf">OPINION/ORDER</A><BR> 2 the EPA created a scheme in which the Environmental Appeals Board ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/dc/opinions/93opinions/93-1652a.html">AMER SCHLST TV PGRM V. FCC<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199807/97-5253a.txt">OPINION/ORDER</A><BR> United States Attorney at the time the brief was filed. Were on brief. Wright and Audrey Byrd Mosley were on brief. Glitzenstein was on brief. Circuit Judge: This appeal poses the recurring question of what remedy is appropriate for a federal agency's violation of the Federal Advisory Committee Act. Which committee both the Department and the Academy concede was orga nized and operated in violation of FACA. Because we have serious doubts whether the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/04/04/031441P.pdf">OPINION/ORDER</A><BR> & the National Highway Traffic Safety Administration Craftsmen is a closely held corporation owned by Robert Haswell and Marc Haswell. Is one of Craftsmen's direct competitors. It manufactures base vehicles that are later converted into limousines by independent coachbuilders like American Coach and Craftsmen. Approximately sixty percent of the six thousand limousines produced each year were converted from Ford's Lincoln Town Cars. The limousine industry is regulated by the National Highway Traffic Safety Administration. Coachbuilders are responsible for self certifying that their vehicles meet the federal safety standards. It claimed its vehicles were safe based on the construction techniques employed and the fact that none of its customers ever returned a limousine out of a concern for safety.2 At the time. Craftsmen complied with the recall orders and was not fined by the National Highway Traffic Safety Administration. A wedding party in New York was killed when its limousine was hit and split in half as it crossed an intersection. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/Nov1998/98a2015p.txt">OPINION/ORDER</A><BR> Abuhouran is a naturalized citizen of the United States. Which will be used in the remainder of this opinion. Is Tony Houran. He was in the construction business and with them owned Houran Construction Co. As a consequence BBV's capital was depleted to the point that the bank was placed in federal receivership. Adam stood trial with Tony and was convicted too. HTC was little more than a shell used to circumvent the limits on loans to a single borrower. The fraud is undisputed. Tony's share in it was an issue at trial. 2 The government contended that Tony's past work in helping Steve get fraudulent loans from other banks. Showed that Tony must have been aware that Steve was supplying BBV with the false assurance that Tony would guarantee the loan and a false financial statement showing Tony's net worth as $2. Seems to have been in doubt. The jury should consider only July 1990 when the line of credit was applied for or whether the jury could consider the time charged in the indictment ranging from July 1990 to February 1992. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/991991.P.pdf">OPINION/ORDER</A><BR> Line 10 the line is corrected to read </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/Dec1999/983641.txt">OPINION/ORDER</A><BR> We are asked to construe 18 U.S.C.S 666. We conclude that the District Court erred in interpreting the statute in this respect and will therefore remand for further proceedings consistent with this opinion. We will vacate this aspect of the sentencing order and direct the District Court on remand to award the additional one point reduction if it determines that Zwick timely provided complete information to the government or timely notified the government of his intent to plead guilty to enable the government and court to conserve their resources.1 I. Zwick was an elected member of the Ross Township Board of Commissioners. Which would have preserved Zwick's legal challenge to the application of S 666 when there is no connection between a defendant's conduct and federal funds or programming. Zwick was willing to plead guilty to the bank fraud and mail fraud counts. Further plea negotiations were derailed. So the case was tried to a jury. Zwick was convicted on counts one. We will review the relevant facts adduced at trial regarding the alleged bribes. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/982123.U.pdf">OPINION/ORDER</A><BR> Unpublished opinions are not binding precedent in this circuit. The county contends that the moratorium was valid. Was reasonably necessary to permit it to study the effect of erecting the towers on the safety of county residents and the aesthetic aspects of county land. Finding that BAM's claims against the moratorium are moot and its claims against the ordinance are not ripe. Is known for its beautiful natural landscape.1 Currently. It is home to three wireless towers like those at issue here. The moratorium was effective for the shorter of a one year period or the time it took to enact a zoning plan. BAM not only was allowed to participate in those meetings. Also was asked to provide technical assistance to county leaders throughout the summer so that the county might better understand the issues involved. Because the moratorium was still in effect. The ordinance is a comprehensive zoning plan designed to regulate the location and structure of wireless telecommunications towers. The ordinance is designed not only to reflect the safety concerns of county officials. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/Sept1994/94a0845p.txt">OPINION/ORDER</A><BR> Before us is the City of Philadelphia's appeal from the orders of the district court dated September 24. This is one of a series of appeals taken by the City from related orders arising out of a consent decree and various revisions entered into between the City and the plaintiffs. To ameliorate the severe overcrowding and harsh conditions in the Philadelphia prisons.[fn1] Although this appeal was argued at the same time as the other appeals. The court disposes of this appeal initially for reasons that will become clear hereafter. I. BACKGROUND OF THE CASE AND THE CONSENT DECREES The complaint in this case was initially filed in 1982 by a group of inmates suffering from alleged overcrowding at Holmesburg Prison. The plaintiff class was expanded to include all past. The allegations of overcrowding were expanded to apply to the Philadelphia prison system as a whole. There is also pending a somewhat parallel action in the Philadelphia Court of Common Pleas which found. FACTS LEADING TO THIS APPEAL The City decided in late 1992 to double the capacity of the new facility it was required to construct by the 1991 Consent Decree from 1000 to 2000 beds. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/961814A.P.pdf">OPINION/ORDER</A><BR> It is an authority constrained by no less a power than that of the People themselves. The constitution is written. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/docs/common/opinions/200306/02-1264a.pdf">OPINION/ORDER</A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/06/01/044145P.pdf">OPINION/ORDER</A><BR> Bear Butte is a mountain formation seven miles northeast of Sturgis. It is a site of great spiritual significance for certain Native American tribes. Concluding the Tribes are not prevailing parties under the Supreme Court's decision in Buckhannon Board & Care Home. Once funds are allocated. HUD conducts periodic audits to ensure that the State is properly awarding grants and administering the program. The Tribes promptly moved for a preliminary injunction to prevent construction of the shooting range until the litigation was resolved. The practical effect of the preliminary injunction was to compel HUD to bar the State a non party to the lawsuit from accessing additional CDBG funds for the shooting range project. We have held that a judicially approved class action settlement. The only relief the Tribes obtained in the lawsuit was a preliminary injunction that barred HUD from providing funds for construction of the shooting range from the time the injunction was entered until South Dakota canceled its block grant to the City. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/004751.U.pdf">OPINION/ORDER</A><BR> Watson's only role </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=00-1684.01A">OPINION/ORDER</A><BR> Were on brief. Were on brief. The district court determined that NDI should receive some of the payments it claimed were due under its contract with ISSI. That it was not entitled to the full amount because it had failed to render complete performance under its agreement with ISSI. Background</STRONG></FONT></P> <P><FONT FACE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/96opinions/96-1557.html">VEHICULAR TECHNOLOGIES V. TITAN WHEEL<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=01-1916.01A">OPINION/ORDER</A><BR> <SPAN STYLE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca10.uscourts.gov/cgi-bin/getopn.pl?OPINION=03-8060.wpd">OPINION/ORDER</A><BR> €the€City€would€be€entitled€to€qualified€immunity€onÐ </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/04/01/023697P.pdf">OPINION/ORDER</A><BR> Roberts was the general contractor for the United States government. LPS was Roberts's electrical subcontractor. The construction contract required Roberts to obtain a payment bond under the Miller Act to protect subcontractors and suppliers.2 The renovation was scheduled for completion in six months. 000 is awarded for the construction. Which become binding when the contract is awarded: ... (2) Payment bond. It is impracticable for the plaintiff to prove its actual losses directly. The plaintiff's bid that was accepted by Wayne M. Inc. was reasonable. Plaintiff's actual costs were reasonable. LPS argues that subpart four of the instruction was given in error because the Miller Act permits LPS to recover its additional costs of labor and materials regardless of 3 40 U.S.C.A. § 3133(b)(1) (West Supp. 2003): Every person that has furnished labor or material in carrying out work provided for in a contract for which a payment bond is furnished under section 3131 of this title and that has not been paid in full within 90 days after the day on which the person did or performed the last of the labor or furnished or supplied the material for which the claim is made may bring a civil action on the payment bond for the amount unpaid at the time the civil action is brought and may prosecute the action to final execution and judgment for the amount due. 3 Roberts's responsibility for causing those costs. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/B8A530287D28BB0E88256E5A00707AA5/$file/0055621.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: This is the third appeal by Defendant Southwest Marine. Were consolidated and earlier heard by this court. While the consolidated appeal was pending. Work is conducted at its five piers and two floating dry docks. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=03-1920VOL1.01A">OPINION/ORDER</A><BR> Was on brief. Middleton</SPAN> were on brief. Were on brief. The Blind Vendors' claim is that New Hampshire did not give proper </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/07a0081p-06.pdf">OPINION/ORDER</A><BR> Was convicted in his second jury trial in the United States District Court for the Eastern District of Michigan for embezzlement and theft of labor union assets. Barnwell was indicted along with four others: Edwin Nyhus. Williamson and Jackson were both charged with making false statements to federal agents. Williamson was employed as the personal secretary to William Mabry. She was the highest paid clerical employee of the MRCC. Although she was employed by the Union. She was not a member. Was a Business Agent with a different union. Which were ordered to specification. Who was the Director of the MRCC and in charge of the residential carpentry local. Was too sick to continue with the trial. The juror responded that he was planning to leave on Sunday (three days from the start of jury deliberations). The judge advised the jury that they would have to work late hours and through the weekend to accommodate the vacation plans of the juror. Intercepted a telephone call using a wiretap authorized by the judge in the instant case between two individuals who were the subject of an investigation that the Government contends had been ongoing for nearly fifteen years. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/752876AC2E72D7B088256DA3007BDB70/$file/0116391.pdf?openelement">OPINION/ORDER</A><BR> The conforming amendments to the Immigration and Nationality Act have not been completed. If the investment is made in a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="ftp://opinions.ca5.uscourts.gov/byDate/May2004/May19/03-10728-CV0.wpd.pdf">OPINION/ORDER</A><BR> Facts DART is a regional transportation authority created under Background 1 Chapter 452 of the Texas Transportation Code. This delay was Eby made little progress. caused by numerous deficiencies and inaccuracies in the designs that were contained in DART's bid solicitation. DART's Administrative Dispute Resolution Process DART's bid solicitation for the light rail project which is incorporated into the parties' contract as an exhibit contains a provision stating that the bidder. They were promulgated in accordance with express statutory authority. The regulations further explain that the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200205/01-1184a.txt">OPINION/ORDER</A><BR> Lee were on brief. Were on brief. The three provisions are codified at 29 C.F.R. s 1926.757(a)(1)(iii). Its challenge to this provision is waived. Because they are authorized by section 6(b) of the Occupational Safety and Health Act of 1970. (Act) and they are supported by substantial evi dence. Each of the two challenged provisions requires that joists be field bolted temporarily during steel erection to protect employees working on and around the joists until the joists are welded permanently in place. [1] where steel joists are used and columns are not framed in at least two directions with solid web structur al steel members. For the installation of this joist: ... (iii) Hoisting cables shall not be released until the seat at each end of the steel joist is field bolted. Each end of the bottom chord is restrained by the column stabilizer plate. ... (8) Field bolted joists. (i) Except for steel joists that have been pre assembled into panels. It is true that the Act authorizes OSHA to regulate only the employer's conduct at the worksite. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/176138E4BA37484F88256A150060011C/$file/0055621.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: This is the third appeal by Defendant Southwest Marine. Were consolidated and earlier heard by this court. While the consolidated appeal was pending. Work is conducted at its five piers and two floating dry docks. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/04a0169n-06.pdf">OPINION/ORDER</A><BR> Sitting by designation. * At the center of this dispute is a contract between BASF Corporation. The scope of the work and billing rates were incorporated into the Agreement through two attachmentsAttachment A addressed the type of work and Attachment B covered the compensation. BASF is a company that uses the chemical butadiene at two of its plants located around Chattanooga. Edmonds worked at Plant 2 for approximately 32 years and was involved in the decontamination process for 20 years. It was therefore suggested that BASF bring back Edmonds to assist. There was concern. BASF was aware that Fru Con did not have procedures or expertise for decontaminating the tanks. He agreed and was subsequently contacted by Fru Con to arrange for 2 completion of the paperwork. Edmonds was then required to watch a BASF safety video that covered. Edmonds declined because he was still in possession of his old BASF safety equipment. Edmonds reported to BASF's Plant 2 and was told by a BASF supervisor to </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca3.uscourts.gov/opinarch/062419pa.pdf">OPINION/ORDER</A><BR> DC 20005 Attorneys for Appellant This appeal was originally argued before the panel of Judges Smith. The coram was reconstituted to include Chief Judge Scirica after the recusal of Judge Smith. The United States District Court for the Eastern District of Pennsylvania held that the Act prevents parties from taking such claims to federal court until they have been litigated before a state commission. We will affirm the judgment of the District Court dismissing Count III of Core's complaint without prejudice. How those duties are enforced. Such questions are governed by the Telecommunications Act of 1996. Which was enacted </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca3.uscourts.gov/opinarch/062419p.pdf">OPINION/ORDER</A><BR> The United States District Court for the Eastern District of Pennsylvania held that the Act prevents parties from taking such claims to federal court until they have been litigated before a state commission. We will 3 affirm the judgment of the District Court dismissing Count III of Core's complaint without prejudice. How those duties are enforced. Such questions are governed by the Telecommunications Act of 1996. Which was enacted </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca3.uscourts.gov/opinarch/041209np.pdf">OPINION/ORDER</A><BR> Who is missing his left leg. We will affirm. Was disciplined for participating in planning a work stoppage at the prison. Fulton requested that as punishment he be placed in Allenwood's hospital lock up because the special housing unit (SHU) did not have handicapped equipped showers. The request was denied. Fulton was placed in the We have reordered and in some instances condensed the arguments compared to how they appear in Fulton's brief. 2 1 SHU. Which was located in the SHU cell. He also alleged CSCC was liable for intentional and negligent infliction of emotional distress. A trial was scheduled for December 10. 2002 on the question of whether prison officials were negligent in giving Fulton a chair with </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=96-1670.01A">OPINION/ORDER</A><BR> Should form the continuation of the paragraph that currently is at page 6. Were on brief for appellant Penobscot Indian Nation and third party defendants appellees. Were on brief for appellee and cross appellant Key Bank of Maine. Were on brief for appellee Michael Marcello. Taintor & Abbott was on brief for defendants appellees and cross appellants. P.A. was on brief for defendant appellee and cross appellant. Hewey with whom Drummond Woodsum & MacMahon was on brief for appellees Consumers Water Company. It is not apparent from the record that the results of the investigation were set out in writing or were made known to the public. It is clear. The complaint alleged that the two Settlement Agreements signed by PIN and the Appellees were void because they did not receive the Secretary of the Interior's approval pursuant to 25 U.S.C. Together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="379"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/Mar1995/95a0996p.txt">OPINION/ORDER</A><BR> Trustees of the Stock Trust Under Item Third of the Will of Rodman Wanamaker. We will affirm in part and reverse in part. Leaving a will and codicils[fn1] that established trusts for his children and their descendants. At issue in this case is a $120 million trust created in Paragraph Third of his will. The stock was sold for $60 million. After the stock was sold. Holding that Wanamaker had intended to provide spendthrift protection for his great grandchildren and Kellogg's interest in the trust was protected. We have jurisdiction under 28 U.S.C. § 1291 (1988). Our review of the district court's construction of Pennsylvania law is de novo. Will be reviewed de novo. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2002/04/01-1158.htm">01-1158 -- SIERRA CLUB V. U.S. STATES DEPT. OF ENERGY -- 04/19/2002<BR></A><BR> Sierra Club contends its procedural claims alleging that the DOE failed to comply with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) prior to issuance of a road easement are ripe for adjudication. We agree and reverse the decision of the district court with respect to those procedural claims. <p> <center>I.</center> <p> The district court found the following background facts were established by the administrative record. The owners of the Rocky Flats subsurface were precluded from accessing their mineral rights. Which operates an existing gravel pit and grading facility directly west of the Buffer Zone . . . <p> The Buffer Zone is not accessible to the general public. The land is relatively untouched and pristine. The proposed mining area is located on a gravel plain that stores water in the spaces between the rocks. Two hundred acres of the Buffer Zone are used by the DOE as a National Wind Technology Center (NWTC). <p> In 1997. The use and occupation of the road were made subject to such rules and regulations as may be prescribed by the manager of the Golden. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=05-4472_019.pdf">OPINION/ORDER</A><BR> The program enabled the Mexican government to retire some of its foreign owned debt without having to pay </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=97-2127.01A">OPINION/ORDER</A><BR> With whom Madera & Toro was on brief. There is less to this jurisdictional conundrum than meets the eye. I. FACTUAL BACKGROUND Because we are reviewing the grant of a motion to dismiss. The plans were changed to relocate the clinic and provide for a six story bank and commercial office building on the north side of the land. The project again was paralyzed with the clinic 90% complete when regulators placed First Federal under supervision. A First Federal client and a close personal friend of the loan officer with whom the plaintiffs were dealing (Luis Beauchamp). Kutcher acted on behalf of the corporation and was in total control of the clinic's affairs. The bankruptcy case was dismissed within eight months. Because federal courts are courts of limited jurisdiction. Federal jurisdiction is never presumed. Their premise is well taken. The Civil Rules provide an additional three days if service is by mail. The error was harmless. Though the district court should not have ruled on the dismissal motion until the time for lodging an opposition had expired. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=92-2147.01A">OPINION/ORDER</A><BR> Was on brief for appellants. Was on brief for appellees. Are Puerto Rican retirees living in Miami. Are appellants' grandnephew and grandniece. Luis and Noem were married with four children at the time. Have since divorced. We will overturn a district court's denial of a motion for judgment as a matter of law only if we find that a rational jury could reach only one conclusion. Puerto Rico is a civil law jurisdiction. The district court found it 1 While the Puerto Rico Supreme Court has never directly addressed the issue of whether written consent is necessary when both spouses together give a gift of movable property. The record contained testimony that Mateo told Luis that he was giving him money as a gift to build a home. She testified that she knew that the money was for a house on their land in Camuy. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca10.uscourts.gov/cgi-bin/getopn.pl?OPINION=05-4183.wpd">OPINION/ORDER</A><BR> Each forest plan </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/96/08/953916P.pdf">OPINION/ORDER</A><BR> The parties to this dispute came together for the purpose of The constructing and operating a tribal casino on trust lands within the boundaries of the Fort Berthold Indian Reservation in North Dakota. modern era of tribal gaming in this country was ushered in with the 1988 passage of the Indian Gaming Regulatory Act. Whereby Lien was to assist in the financing. The agreement was submitted to the Area Director of the Bureau of Indian Affairs (BIA). Said agency having interim authority under IGRA to The agreement was executed by Wilbur Wilkinson and John Rabbithead on behalf of the Tribes. Arikara collectively comprise the Three Affiliated Tribes and are federally recognized Indian tribes which exercise their sovereignty under a federally approved constitution adopted pursuant to the Indian Reorganization Act of 1934. At the time the agreement was executed Wilkinson and Rabbithead were the TBC's Chairman and Secretary. Which was granted overall regulatory authority for Indian gaming conducted pursuant to IGRA. 25 U.S.C. § 2704. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=93-1400.01A">OPINION/ORDER</A><BR> Pollock & Sheehan were on brief. Dean & Wilder were on brief. This determination is tinged with more than the usual quotient of public interest. We set aside the district court's determination that the parties' dispute over the applicability of state jurisdiction is not yet ripe for adjudication and hold that Congress's grant of jurisdiction to the state in the Rhode Island Indian Claims Settlement Act of 1978. That the Narragansetts have concurrent jurisdiction over. Are entitled to invoke the Gaming Act. The former is impliedly repealed. We affirm both the district court's directive that Rhode Island enter into 2 good faith negotiations to draft a tribal state compact under which gaming operations can be mounted and its refusal to grant relief to various governmental figures and entities who have challenged the Tribe's entitlement to the extraordinary prophylaxis of the Gaming Act. THE SETTLEMENT LANDS We begin with a thumbnail sketch of how the land mass that is the breeding ground for this dispute came to be held in trust for the Tribe. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=02-2344.01A">OPINION/ORDER</A><BR> Drinan</SPAN> was on brief for petitioner.</SPAN> <BR WP= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/57106D01B790EAD188256B6D005FA980/$file/9970373.pdf?openelement">OPINION/ORDER</A><BR> ORDER The opinion reported at 253 F.3d 1161 is amended as follows: On page 1162. Delete </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=93-1932.01A">OPINION/ORDER</A><BR> 1994 is corrected as follows: On page 4. With whom Brooks & Lupan was on brief. McClennen & Fish were on brief. Asserts that this is a case about defendants who demand their own timetable for pretrial discovery and motion practice. Having been laid low by what they claim was a rabbit punch. Assert that this is a case about the government flouting court imposed deadlines and procedural rules. We conclude that the defendants are substantially correct. Should have held the government accountable for the lack of punctual discovery and given the government's litigation adversaries a fair opportunity to formulate their opposition. Inc. or its officers . . . may have or ever had . . . . </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/04a0239p-06.pdf">OPINION/ORDER</A><BR> Inc. are wholly owned by John and Judith Rapanos. These parcels are known as the Salzburg. The Rapanos were charged with illegally discharging fill material into protected wetlands at The Hono rable Danny C. The state informed him that the site was likely a regulated wetland and sent him an application for the necessary permits. Noting that the site probably contained wetlands but could be developed if the necessary permits were issued. Goff concluded that there were between 48 and 58 acres of wetlands on the site. Goff was unwilling to do so. Was denied access. The Criminal Proceedings Criminal charges were brought simultaneously with the instant civil action. The trial was moved to Flint. Finding that the court had improperly allowed the United States to pursue a line of questioning that was prejudicial to the defendant. Determined that the line of questioning was not improper and reversed the district court's grant of a new trial and remanded for sentencing. Pine River Bluffs Estates was also added as a defendant. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=03-1134.01A">OPINION/ORDER</A><BR> Was on brief. Were on brief. The district court concluded it did not have subject matter jurisdiction over Count I of the complaint under 28 U.S.C. § 1331. Facts</STRONG></P> <P> The facts related to this appeal are largely undisputed and are taken from the district court's memorandum and order. <SPAN STYLE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/CE493E92C8AF711088256E5A00707C26/$file/9956221.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: We must decide whether an architect can be held liable for designing a movie theater which is not in compliance with the Americans with Disabilities Act. 10111 I The Market Place Cinema ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.villanova.edu/locator/3d/May2004/032347p.pdf">OPINION/ORDER</A><BR> Circuit Judge The background of this case is the classic corporate love story. They are attracted to each other and after a brief courtship. Hoping that the two companies will be fruitful and multiply. He believes that Company A knew that there were problems with Company B but that it made the oft repeated mistake of thinking that it would be able to change Company B for the better. Investor C files suit in the district court and after his complaint is dismissed. It is an old story but it never fails to elicit a tear. Was carried out pursuant to defendants' allegedly false and misleading offering circular. I. Washington is an international engineering and construction firm that. Roach were officers and/or directors of Washington during the acquisition process. Washington r e pr e s e n t a ti v es Washington was known as Morrison Knudsen Corporation (sometimes referred to as MK) before the note offering. Was not named as a defendant in this action. 1 commenced negotiations during the summer of 1999 for the acquisition of REC. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="ftp://opinions.ca5.uscourts.gov/unpub/02/02-30783.0.wpd.pdf">OPINION/ORDER</A><BR> That copyright infringement in the bid solicitations is covered by its insurance policy. Because Salco's bid solicitations are not advertising of </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/82F394E9E95F5C1388256A6B005BE8DE/$file/9970373.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: This is an appeal from the summary dismissal by the Federal Energy Regulatory Commission ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/97opinions/97-5126.html">CIENEGA GARDENS V. US<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/02/06/011898P.pdf">OPINION/ORDER</A><BR> This is a dispute between several insurers and an insured. WalMart and National Union argued that they were protected from liability by an indemnity clause in the vendor agreement between Wal Mart and its supplier. That Wal Mart's insurance with National Union was underlying insurance under RLI's policy and must be exhausted before RLI is obligated as an excess insurer. They argue that the result of the decision is to make a covered insured (Wal Mart) liable to its own insurer (RLI). They also assert that the District Court's decision will result in unnecessary and circular litigation. Wherein RLI will ultimately still be held liable for the entire settlement because of Cheyenne's promise to indemnify Wal Mart. Cheyenne was also required to demonstrate proof of at least $2 million of liability insurance. Cheyenne was covered by two insurance companies. Paul was its primary insurer. RLI was an excess insurer beyond the St. Wal Mart was a covered insured under both the St. Allegedly was defective. This </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/Sept1996/96a1411p.txt">OPINION/ORDER</A><BR> Circuit Judge The Allegheny County Patriot Party ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/7B80D73BD652E2BA88256AA000565134/$file/9956221.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: We must decide whether an architect can be held liable for designing a movie theater which is not in compliance with the Americans with Disabilities Act. 10111 I The Market Place Cinema ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/378BBBBD1280C1DF88256E5A00707B97/$file/9970373.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: This is an appeal from the summary dismissal by the Federal Energy Regulatory Commission ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/docs/common/opinions/200402/02-1060a.pdf">OPINION/ORDER</A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/01opinions/01-1010.html">FRANKLIN PAVKOV CONSTRUCTION CO V. JAMES G. ROCHE<BR></A><BR> Argued for appellee.<span style= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/07a0283p-06.pdf">OPINION/ORDER</A><BR> Was destroyed by a fire. Was convicted of arson and mail fraud under 18 U.S.C. §§ 844(i) and 1341. He contends that his church was not sufficiently involved in interstate commerce to trigger the federal arson statute. He claims that the evidence presented at trial was insufficient to establish guilt beyond a reasonable doubt on all charges. Rayborn argues that evidence of his access to and control of church finances was inadmissible under Federal Rule of Evidence 404(b). Rayborn's convictions are AFFIRMED. Tennessee was destroyed by fire on August 25. Was indicted on one count of arson in violation of 18 U.S.C. § 844(i) and two counts of mail fraud in violation of 18 U.S.C. § 1341. Concluding that his prosecution under the federal arson statute represented an unconstitutional extension of Congress's commerce power because the government failed to establish that the church was sufficiently related to interstate commerce. The panel held that </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/96/01/943845P.pdf">OPINION/ORDER</A><BR> I. BACKGROUND Hamilton is incarcerated at the maximum security Potosi The facility provides crossCorrectional Center (Potosi).1 denominational religious facilities inside prison buildings. American Indian inmates at Potosi are allowed to pray. American Indians are also allowed to carry medicine bags containing ceremonial items and have access to a ceremonial pipe and kinnikinnik (a ceremonial </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=97-8022.01A">OPINION/ORDER</A><BR> Were on brief for Philip Morris appellants. Were on brief for United States Tobacco Company appellants. Were on brief for appellees. The specific plaintiffs appellants are Philip Morris Incorporated. The specific defendants appellees are L. We consider the statutes' respective texts along with the relevant historical and legislative contexts in which they were enacted. Normally we consider the record evidence with respect to each motion separately </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/04/03/031046P.pdf">OPINION/ORDER</A><BR> Concluding that it is severable from the invalid provisions. Chapter 222 specified criteria to be used by the Governor and the Commission in determining public use consistent with public necessity: A railroad's exercise of the right of eminent domain is a public use consistent with public necessity only if the use of eminent domain: (1) Has as its purpose providing railroad transportation to shippers in South Dakota. (2) Is proposed by an applicant with the financial resources necessary to complete the proposed construction . . . along with any related facilities . . . which are necessary to protect against harm to the public safety. (3) Is proposed by an applicant who has negotiated in good faith to privately acquire sufficient property without the use of eminent domain. (4) Is proposed by an applicant who has filed a plat. Rural water systems have the right to the use of the right of way for the placement of underground facilities. The Final Environmental Impact Statement stated: Eminent domain proceedings are regulated by state law and not administered by the Board. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/001763.U.pdf">OPINION/ORDER</A><BR> Unpublished opinions are not binding precedent in this circuit. I. JMB is a general contractor that designs and builds construction projects.1 In 1997. JMB was to be paid its actual cost and a 5.1% fee. The Contract provided that </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=98-1905.01A">OPINION/ORDER</A><BR> Was on brief. Both of which were intended to help curb the escalating societal problems associated with domestic violence. A recently enacted federal law makes it a crime for a person who is subject to a judicial anti harassment or anti stalking order to possess firearms that have been shipped or transported in interstate commerce. He was subject to a state court restraining order. Whose only potential predicate offense is a misdemeanor conviction under a general assault and battery statute. Which characterizes a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/96opinions/96-1005.html">MINCO, INC. V. COMBUSTION ENGINEERING<BR></A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ll.georgetown.edu/federal/judicial/fed/opinions/04opinions/04-1291.html">ON-LINE TECHNOLOGIES, INC. V. BODENSEEWERK PERKIN-ELMER GMBH, ET AL.<BR></A><BR> Argued for defendants <span class=SpellE>appellees</span>.<span style='mso spacerun:yes'> </span>With him on the brief was <u>C. Kyle Musgrove</u>.<span style='mso spacerun:yes'> </span>Of counsel on the brief were <u>Francis H. Which is used in an infrared spectrometer to determine the composition of gases such as emissions from industrial plants.<span style='mso spacerun:yes'> </span>The spectrometer captures the gas to be tested and directs a beam of infrared light through the chamber containing the gas.<span style='mso spacerun:yes'> </span>After the light has passed through the chamber. Was that over the long path created by multiple reflections of the light beam within the chamber. Primarily because o </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/docs/common/opinions/200701/04-1148a.pdf">OPINION/ORDER</A><BR> With him on the briefs were James Bradford Ramsay. With him on the brief were S. With her on the brief were Robert H. With her on the briefs were Neil L. FERC's solution in Order No. 888 was to require transmission providers. Which typically have a natural monopoly. Here we review claims advanced by two sets of petitioners (the two sets are generally aligned with each other in their positions): four utilities ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=91-1954.01A">OPINION/ORDER</A><BR> Is amended as follows: On page 17. Bradford & Veague were on brief for defendant. Was on brief for plaintiffs. *Of the Third Circuit. Plaintiffs are Ronald and Rosalie Masure. Defendant John Donnelly is a home builder. 3 Ronald Masure testified to the following. In September 1989 the Masures expressed an interest in buying a house Donnelly was then completing on Moosehead Lake in Northern Maine. They were particularly impressed with the view of the lake from the house. Donnelly informed the Masures that the asking price was $237. Donnelly was not present. The Masures were unaware of any problems with the house. Was informed by Edwards that </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="359"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/98/07/972712P.pdf">OPINION/ORDER</A><BR> We conclude the district court's decision was correct2 and we affirm. Rahr alleges Climatic was negligent in the installation of the PCS for Malthouse 5 which regulates movement of malt from the malthouse to conveyors and storage silos during the drying process. Rahr was processing barley in the malthouse. The finished malt was diverted to the malthouse instead of the storage silos and explosive malt dust accumulated in a conveyor. There was a fire and two workers were injured. Rahr's losses have been paid by its insurer subject to this subrogation claim against Climatic. The contract is a standard American Institute of Architects (AIA) A201/CM contract. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/docs/common/opinions/200601/05-5206a.pdf">OPINION/ORDER</A><BR> With him on the brief were Daniel P. With her on the brief was Elizabeth A. With him on the brief were Matthew T. The Tribe was administratively terminated in 1935. When its application for recognition was denied under the Indian Reorganization Act of 1934 ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/1997/10/96-7074.htm">96-7074 -- U.S. V. LAMPLEY -- 10/20/1997<BR></A><BR> John Dare Baird were convicted of conspiring to knowingly make and possess a destructive device and maliciously damage and destroy. Baird also were convicted of the use or carrying of a firearm during and in relation to the commission of a crime of violence. Lampley also was convicted of solicitation of a government informant to commit a crime of violence against the United States. Baird submit that their Sixth Amendment right to a fair trial by an impartial jury was unduly prejudiced by the influence of the April 19. The details of their claim are: The trial coincided with the one year anniversary of the Oklahoma City bombing. The corresponding presence of security forces was excessive and media publicity pervasive. A memorial wreath was placed on the courthouse door. A memorial sign was in the window of a Federal Protective Service vehicle parked in front of the courthouse. Statements relating to the Oklahoma City bombing were admitted into evidence. <p> <strong>A.</strong> There is no dispute that Defendants were tried during the general anniversary period of the Oklahoma City bombing.<a href= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/4B97BF2891383BD48825730600829913/$file/0575337.pdf?openelement">OPINION/ORDER</A><BR> Sells photographs to tourists on a historic naval ship is entitled to collect benefits under the Longshore and Harbor Workers' Compensation Act ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//apr96/93-4063.opa.html">UNITED STATES V. BROWN<BR></A><BR> This document was created from RTF source by rtftohtml version 2.7.5 > <title>United States v. Circuit Judge:<p> <p> This appeal is one by four defendants. Who were convicted of defrauding and conspiring to defraud home buyers throughout the 1980's. Their guilt was not proved: insufficient evidence was presented that a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension was devised. GDC was selling some of its homes at significantly higher prices than independently built homes within the same neighborhoods.<a href= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/Jan1998/98a1777p.txt">OPINION/ORDER</A><BR> The critical issue before this Court is whether petitioner Dorsey Trailers. This Court will grant the petition for review but will enforce the Board's Decision and Order in part. Pennsylvania plant.2 The United Auto Worker's International and its Local 1868 (the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2000/05/98-1122.htm">98-1122 -- FLANNERY PROPERTIES V. BYRNE -- 05/30/2000<BR></A><BR> Byrne told him the eastern property line </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/dec99/99-6008.man.html">SOUTHERN NATURAL GAS CO. V. LAND, CULLMAN COUNTY (12/16/1999, NO. 99-6008)<BR></A><BR> Is an interstate natural gas pipeline company serving the southeastern United States. Extension of the pipeline requires the use of a series of 50 foot wide permanent easements that will cross some 500 tracts of land in seven Alabama counties. This appeal involves the process by which </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199806/97-1352a.txt">OPINION/ORDER</A><BR> Nolan was on brief. Were on brief. We dismiss both challenges because we conclude that (1) PIHA is not </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=92-1004.01A">OPINION/ORDER</A><BR> Was on brief for City of Waltham. Weil and Palmer & Dodge were on brief for Town of Lexington. Was on brief for United States Postal Service. The towns pointed out that the Service must prepare an Environmental Impact Statement (an </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/02/07/011071P.pdf">OPINION/ORDER</A><BR> The Lake is part of a hydropower project on the Osage River that is owned and operated by Intervenor Union Electric Company under a license from FERC that authorizes Union Electric to allow certain uses of the Lake for the benefit of the public and to recoup its costs of doing so. That the fees were unreasonable. The Water Power Act was the outgrowth of a widely supported effort of the conservationists to secure enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the Nation. In so far as it was within the reach of the federal power to do so. Take into account not only the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//sept99/98-2872.man.html">SLEIMAN V. COMMISSIONER (9/10/1999, NO. 98-2872)<BR></A><BR> The lease agreement provided that if the property was environmentally contaminated. Was environmentally contaminated and required substantial cleanup. The second loan was secured by a mortgage on the property and REE's interest in the Blockbuster lease and by Eli's personal guarantee. The Roosevelt property was an environmentally contaminated former gas station that had been accepted into Florida's EDI program.<A HREF= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca7.uscourts.gov/op/02/02-3332.PDF">OPINION/ORDER</A><BR> Fedor alleged that calls made in January were billed under the allotment for February. Resulting in extra charges for 2 No. 02 3332 February (i.e. because it caused him to exceed the fixed rate minutes in February) even though no charges would have accrued had the minutes been properly attributed to January (because the January allotment of minutes was not fully used). Is that Cingular customers incurred charges in excess of the charges that those customers should have paid under the service plan purchased. Held that the complaint was a challenge to the reasonableness of Cingular's rates. That such a challenge was completely preempted by the Federal Communications Act (FCA). Which provides that no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service. That the claims were within the primary jurisdiction of the Federal Communications Commission ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/apr96/93-4063.opa.html">UNITED STATES V. BROWN<BR></A><BR> This document was created from RTF source by rtftohtml version 2.7.5 > <title>United States v. Circuit Judge:<p> <p> This appeal is one by four defendants. Who were convicted of defrauding and conspiring to defraud home buyers throughout the 1980's. Their guilt was not proved: insufficient evidence was presented that a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension was devised. GDC was selling some of its homes at significantly higher prices than independently built homes within the same neighborhoods.<a href= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/06a0035p-06.pdf">OPINION/ORDER</A><BR> Plaintiff filed a complaint against Defendant that sought a declaratory judgment that the Ordinance was unconstitutional because it violated the dormant Commerce Clause and a permanent injunction barring Defendant from enforcing the Ordinance against Plaintiff's members. Issued a declaratory judgment that the Ordinance was unconstitutional. B. FACTS The facts are not in dispute. Defendant is a county located in Kentucky. Defendant is responsible for developing and implementing solid waste management plans for the county. Nonexclusive franchises shall be granted to all haulers that are properly registered in accordance with KRS 224.43 315(2). Have properly filed an annual report as required by KRS 224.43 315(3). Are in compliance with all other applicable laws and regulations. Plaintiff is a trade association whose members are </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/sept99/98-2872.man.html">SLEIMAN V. COMMISSIONER (9/10/1999, NO. 98-2872)<BR></A><BR> The lease agreement provided that if the property was environmentally contaminated. Was environmentally contaminated and required substantial cleanup. The second loan was secured by a mortgage on the property and REE's interest in the Blockbuster lease and by Eli's personal guarantee. The Roosevelt property was an environmentally contaminated former gas station that had been accepted into Florida's EDI program.<A HREF= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199907/98-7063a.txt">OPINION/ORDER</A><BR> Qatar was to pay Creighton in Qatar. In fact all payments were made there in Qatari riyals. The contract provided that it was to be performed and interpreted under Qatari law and that all disputes were to </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcU1VNXDA1LTM5ODAtY3Zfc28ucGRm/05-3980-cv_so.pdf">OPINION/ORDER</A><BR> </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/981199.P.pdf">OPINION/ORDER</A><BR> I. The Woodlands Skilled Nursing Center is located in Rutherfordton. Was built by RNH in the late 1970s. The original operator of the facility was a company named ISO. Which later were acquired by Rutherford. Are scheduled to expire in April 2000 and cover the facility's real and personal property. A copy of the bankruptcy court's order and Notice to Interested Parties was mailed to Rutherford along with forty other potential buyers. The Rutherford Nursing Center was identified as a 150 bed facility </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/991390.P.pdf">OPINION/ORDER</A><BR> The operating profit for the first six months of 1995 was $1. All was not well at the Northumberland plant. Said that the company was prepared to endure a strike to achieve this goal. If subcontracting and mandatory overtime were not allowed. He later emphasized to a group of workers that closing the plant was </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/962412.P.pdf">OPINION/ORDER</A><BR> Line 29 the cross reference is corrected to read </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/05a0465n-06.pdf">OPINION/ORDER</A><BR> Prosper Ndabishuriye must have thought it a stroke of good fortune when the Albert Schweitzer Society USA (the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/10circuit/oct97/96-7074.wpd.html">UNITED STATES V. LAMPLEY<BR></A><BR> John Dare Baird were convicted of conspiring to knowingly make and possess a destructive device and maliciously damage and destroy. Baird also were convicted of the use or carrying of a firearm during and in relation to the commission of a crime of violence. Lampley also was convicted of solicitation of a government informant to commit a crime of violence against the United States. Defendants were tried together in district court and argued their appeals in this court on the same day. violation of 18 U.S.C. 2. Baird submit that their Sixth Amendment right to a fair trial by an impartial jury was unduly prejudiced by the influence of the April 19. The details of their claim are: The trial coincided with the one year anniversary of the Oklahoma City bombing. The corresponding presence of security forces was excessive and media publicity pervasive. A memorial wreath was placed on the courthouse door. A memorial sign was in the window of a Federal Protective Service vehicle parked in front of the courthouse. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/564D4A580B7317BE88256CB0000D6EA2/$file/0270986.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: Petitioners1 challenge the Department of Transportation's The petitioners in this case are Public Citizen. The combined effect of which will permit Mexico domiciled motor carriers to operate within the United States beyond the current limited border zones. The Department of Transportation decided that there was no need for further environmental analysis. It is useful to examine the legal and regulatory context in which they were promulgated. We will refer to them (as well as the Petitioners Intervenors. Our existing governmental institutions are not adequate to deal with the growing environmental problems and crises the Nation faces. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/7D0871898CB7FA8888256D410074D8CC/$file/0136137.pdf?openelement">OPINION/ORDER</A><BR> Was on the brief. Circuit Judge: We are called upon to decide whether a settlement agreement entered into by the Spokane City Council and a property developer violated Washington's Open Public Meetings Act. That the members of the city council individually were not immune from liability. Feature Realty was awarded appellate costs and attorney fees and the case was remanded to the trial court for further proceedings. A confidential memorandum reciting the terms of the proposed settlement was presented to the city council on October 5. The city council held a regular legislative session that was open to the public. The memorandum was not presented at that meeting. The confidential memorandum summarizing the proposed settlement was distributed to city council members. An informal consensus was achieved by </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=94-1301.01A">OPINION/ORDER</A><BR> Hawkes & Goldings were on brief for appellant. Were on brief for appellee. Shay Jr. was tried first. The thrust of the government's case was that Trenkler had built the Roslindale bomb for Shay Jr. to use against his father. Finding that it was relevant on the issues of identity. Shea was involved in a dispute with the owners of the Capeway Fish Market and she wanted the bomb to use as a means to intimidate them. The device was later attached to the undercarriage of a truck belonging to the Capeway Fish Market 3. The charges were dismissed. 4 4 and detonated in the middle of the night. Was unable to find all of the items. Testimony from government investigators and Shay Sr. established that the Roslindale bomb was a remote control. A large donut shaped magnet and several smaller round magnets attached to the box were used to secure the device to the underside of Shay Sr.'s automobile. The bomb was originally attached to the undercarriage of Shay 6 6 Sr.'s automobile directly beneath the driver's seat. It probably would have killed or at least seriously injured any individual sitting in the driver's seat. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=99-1843.01A">OPINION/ORDER</A><BR> Was on brief for appellees.</FONT></P> <BR WP= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/July1996/96a1346p.txt">OPINION/ORDER</A><BR> Two significant constitutional questions are presented for our review. The first is whether the government's use of acquitted codefendant Mercedes Travis. Who Voigt alleges was counsel to the Trust and to him personally. The second is whether the district court violated Voigt's Sixth Amendment right to counsel of choice when. We must decide whether those statutes require formal </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=99-1760.01A">OPINION/ORDER</A><BR> P.C.</U> were on brief. Knight LLP</U> were on brief. It is brought by a group of residents of Belmont. We affirm.</FONT></P> <BR WP= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//dec99/99-6008.man.html">SOUTHERN NATURAL GAS CO. V. LAND, CULLMAN COUNTY (12/16/1999, NO. 99-6008)<BR></A><BR> Is an interstate natural gas pipeline company serving the southeastern United States. Extension of the pipeline requires the use of a series of 50 foot wide permanent easements that will cross some 500 tracts of land in seven Alabama counties. This appeal involves the process by which </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=99-1679.01A">OPINION/ORDER</A><BR> Morrell</U> were on brief. Four are defendants in this case: Cleofe Rubi Gonzalez ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/200015964.opn.pdf">OPINION/ORDER</A><BR> Chief Judge: This appeal is about the plaintiffs' attempt to overturn a local zoning board's decision to deny plaintiffs an exception to build a wireless communications tower in a residential neighborhood. We must determine whether </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca11.uscourts.gov/opinions/ops/200113606enb.pdf">OPINION/ORDER</A><BR> Is entitled to Eleventh Amendment immunity for these particular functions. Defendant Sheriff Peterson is responsible for the operation of the jail in Clinch County. Sheriff Peterson's deputy and chief jailer is Alan Brown. As Manders was escorted into the jail's holding cell. Manders was released from jail. The Manual also details when deadly force is justified. Are responsible for use of force policy at the jail. For ensuring that the policy is followed.3 According to Manders. Manders sought damages against Clinch County and Sheriff Peterson in his official capacity.4 The district court denied defendants' motion for summary judgment on Manders's § 1983 damage claims against Clinch County and Sheriff Peterson in his official capacity for the use of force policy at the jail and the training and The parties and the district court litigated this lawsuit against Sheriff Peterson as if all of Manders's § 1983 claims against Clinch County also were made against Sheriff Peterson in his official capacity. Claiming that he is a state actor and that the district court erred in denying him Eleventh Amendment immunity.6 This appeal does not address the individual liability of Sheriff Peterson or his deputies for using excessive force.7 Instead. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199902/97-7138a.txt">OPINION/ORDER</A><BR> With him on the briefs were Gary A. With him on the briefs were Stephen A. With him on the briefs were George D. Which applies when a district judge becomes unable to proceed and is replaced by a successor judge. This required signifi cant changes in utility relocation plans that were important to the early stages of construction of the Shaw Street station. The contractors were running a deficit of over $8.6 million on the Shaw Street project alone. Coupled with the fact that Perini was no longer making capital contri butions to the project. Each burst of energy was short lived. Asserting that the September and December 1990 mile stone dates were no longer attainable. It was not entirely clear whether Perini. Observing that </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/C65B8D8A645F754188256EB5004E4AD7/$file/0256487.pdf?openelement">OPINION/ORDER</A><BR> Circuit Judge: The controlling question in this case is whether Appellant the City of Los Angeles (the City) may revoke a building permit issued to Appellee Congregation Etz Chaim (the Congregation) authorizing renovations to a home owned by the Congregation and used as a place of worship. Because we agree with the district court that Congregation was entitled to rely on issuance of the building permit by the City. BACKGROUND There is a long history of litigation between the City and the Congregation. Most of the Congregation's claims were dismissed. After the Agreement was signed and the Congregation's action was dismissed. The City described the permit as having been issued </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/04a0177p-06.pdf">OPINION/ORDER</A><BR> The district court held that coverage was available under the American National policy. The district court's judgment is affirmed in part and reversed in part. Connected to one wall of the reservoir was a semi circular manhole structure. The reservoir and the manhole structure shared one common wall that was made of concrete. The rest of the manhole structure was made of masonry. The district court held that coverage was available under the American National commercial general liability policy. Show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/021639.P.pdf">OPINION/ORDER</A><BR> That six metric tons2 of surplus plutonium will be transferred from Rocky Flats to SRS for long term storage. That it had failed to comply with NEPA procedures prior Plutonium is a highly radioactive. Pits) at the core of modern nuclear weapons are largely composed (at least 93%) of a particular type of plutonium Plutonium 239. We will review the pertinent facts and legal principles governing the NEPA issues presented.5 II. When these requests were denied. 2002. 5 Certain national and local media were Parties in Interest in the district court. That ruling is not at issue in this appeal. That ruling is also not before us. 3 6 HODGES v. Unilaterally announced that a total of 38.2 metric tons of our plutonium was no longer necessary for defense purposes. The use of the terms </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/03a0437p-06.pdf">OPINION/ORDER</A><BR> The general question presented by the relatively bizarre factual background of this case is whether or not a core function of municipal government the provision of firefighting services impacts interstate commerce such that an individual can be indicted under a federal anti arson statute for destroying a fire station. Is whether the Henning. Tennessee Fire Station was used in an activity affecting interstate commerce such that the person charged with setting it ablaze can be indicted under 18 U.S.C. § 844(i). We hold that this particular fire station was used in an activity affecting interstate commerce and accordingly REVERSE the judgment of the district court dismissing the indictment and REMAND for further proceedings consistent with this opinion. I. BACKGROUND FACTS AND PROCEDURE Prometheus may have thought twice before handing down the gift of fire to humans had he imagined that those whom the mere mortals chose to steward the precious flame would use it to decimate the very mechanisms employed to control 1 No. 02 5185 United States v. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="356"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/972389.P.pdf">OPINION/ORDER</A><BR> Little Neck is a heavily wooded residential area with no significant commercial development. Little Neck is zoned R 20 Residential under the Virginia Beach Zoning Ordinance. Digital service is considered an advance over analog service. Because digital signals are weaker than analog signals. They investigated several possible tower sites in Little Neck and concluded that the Church's property was the most desirable. The towers were also to provide analog signals for GTE Mobile Net and 360o Communications (not parties to this case). Largely on the grounds that such a commercial use of the Church property was improper in a residential area and that the towers. The Council also appears to have had before it one shorter petition supporting the application and various letters to councilmen on the matter. Voiced his opposition in light of the testimony of area residents who did not think that improved service was worth the burden of having the towers looming over them. (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. ... 5 (iii) Any decision by a State or local government or instrumentality thereof to deny a request to place. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.villanova.edu/locator/3d/March2003/013757p.pdf">OPINION/ORDER</A><BR> Chief Judge: This is an appeal by Peter A. Murphy following a jury trial in which he was convicted on three counts of violating the Travel Act. Murphy is the former Chairman of the Republican Party in Passaic County. Who was involved in the bribery scheme. Margiotta was decided over a strong dissent by Judge Ralph K. That such an inquiry was not based on any legal duties articulated in federal or state law. The Government's Margiotta theory was that Murphy had attained such a dominant role in the political system of Passaic County that he could be considered the equivalent of a publicly elected official. Murphy contends that this court should not endorse the Margiotta rationale because it is an overreaching interpretation of the mail fraud statute. Which was the predicate offense in the Travel Act charges. We are not persuaded by this argument. It was improper for the District Court to allow the jury to create one. We will therefore reverse Murphy's mail fraud 4 conviction and remand for a new trial in which the Margiotta theory of mail fraud will not be submitted. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/001241.U.pdf">OPINION/ORDER</A><BR> Unpublished opinions are not binding precedent in this circuit. Inc. trades as DARCARS Toyota and will be referred to as </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/06/08/061035P.pdf">OPINION/ORDER</A><BR> All of Advantage's applications were denied because each proposed billboard violated multiple provisions of the Eden Prairie Sign Code. Claiming that the sign code is unconstitutionally overbroad under the First and Fourteenth Amendments and that its own constitutional rights were violated by the denial of its applications. Concluding that Advantage's overbreadth challenge to the sign code fails for lack of standing and that its own rights were not violated. I. Advantage is an outdoor advertising company. Each billboard was to contain trivision technology. The sign code's stated purpose is to </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca10.uscourts.gov/cgi-bin/getopn.pl?OPINION=05-3165.wpd">OPINION/ORDER</A><BR> A Kansas state trooper uncovered approximately sixty kilograms of cocaine hidden in a compartment underneath the bed of a truck in which Defendants Gregory Stephenson and Alton Stanley were traveling. We have jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742(a)(2). I. <hr> The following undisputed facts are taken from the transcript of the suppression hearing at which only the arresting officer testified. Sergeant Kelly Schneider was patrolling Interstate 70 in Russell County. The </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/981887.P.pdf">OPINION/ORDER</A><BR> It is economically impractical to duplicate the incumbent LEC's local network infrastructure. If negotiations fail it is hard to see how they would not either party may petition the state utility commission to arbitrate open issues.See id. § 252(b).1 The terms imposed by the state commission in arbitration must </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/982229.P.pdf">OPINION/ORDER</A><BR> Circuit Judge: This is a suit brought by Russ and Lee Pye. The Pyes own adjoining land to the land on which the road crossing is constructed. Their land also adjoins what is known as Tract M of the Sheppard Tract on which an eighteenth century plantation house connected to the Hayne family is situated and is near to. The cemetery itself adjoins the Pyes' land and is probably partly on the Pyes' land. The old plantation house is eligible for the National Register of Historic Places. As is the African American cemetery. We are of opinion such dismissal was error. Which is owned by the County and open to private use only with County permission. A .23 acre segment of the road is covered by waters of the United States. The Pyes' property is adjacent to Area M and contains part of an historic African American cemetery. Both the plantation home site and that of the cemetery have been declared eligible for entry on the National Register of Historic Places. Other adjacent property are all part of a larger area known as Encampment Plantation. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca8.uscourts.gov/opndir/97/07/962037P.pdf">OPINION/ORDER</A><BR> One such issue is whether state and local Congress governments may franchise federally regulated cable operators. answered with a qualified yes. The issue before us is whether an SMATV system </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2002/01/00-2453.htm">00-2453 -- ROSETTE INCORPORATED V. U.S. -- 01/22/2002<BR></A><BR> Agreeing with the district court that the geothermal resources at issue in this case are </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca7.uscourts.gov/op/03/03-1847.PDF">OPINION/ORDER</A><BR> Sought a ruling from the bankruptcy judge that the judgment debt to them was not dischargeable in bankruptcy. 11 U.S.C. § 523(a)(2)(A). They would have to prove fraud anew in that proceeding to defeat discharge. She and her husband had made a deal with Catt's building company (which has declared bankruptcy separately and is not a party to this case) to buy jointly a piece of land on which Catt would build a house. The plan was that when the house was sold. Construction was delayed. A hearing was held two and a half weeks before the trial in the state court was scheduled to begin. At the hearing Catt's lawyer indicated that Catt was planning to declare bankruptcy and didn't seem interested in continuing with the litigation. The judge granted the motion the day before the trial was to begin. The trial was short no more than an hour or two. The effect of a judgment in subsequent litigation is determined by the law of the jurisdiction that rendered the judgment. Provided the judgment was rendered in a proceeding that comported with due process of law. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/54B7C2420215507A8825734F0059BA58/$file/0555739.pdf?openelement">OPINION/ORDER</A><BR> The parties were left with an arbitration award and two district court orders. We have jurisdiction under 28 U.S.C. § 1291. I Improv West is the founder of the Improv Comedy Club and the creator and owner of the </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/Nov1994/94a0882p.txt">OPINION/ORDER</A><BR> The underlying action is Acierno's request for declaratory and injunctive relief and compensatory and punitive damages for the County's alleged violations of the Constitution and laws of the United States and 42 U.S.C.A. § 1983 (West 1994).[fn1] Presently before us is the County's appeal from an order entered by the United States District Court for the District of Delaware granting Acierno's motion for a mandatory preliminary injunction directing the County to issue Acierno a building permit for development of a shopping mall. The district court also concluded that Acierno would suffer irreparable harm unless the County was compelled to issue the building permit and halt its interference with Acierno's development. The County argues Acierno failed to show he will be irreparably harmed unless a preliminary injunction issues against the County. A primary purpose of a preliminary injunction is maintenance of the status quo until a decision on the merits of a case is rendered. There is no evidence in this record to show that a delay in issuance of the building permit until this case can be decided on its merits would cause irreparable harm to Acierno. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.fedcir.gov/opinions/06-1402.pdf">OPINION/ORDER</A><BR> With him on the brief were Terry Kearney and Michael A. With him on the brief were Richard L. Of counsel was Jeffrey M. The device relies on a grid of </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200006/99-5215a.txt">OPINION/ORDER</A><BR> With him on the briefs were Lois McKenna Henry. With him on the brief were Robert R. With him on the brief were David W. I The Individuals with Disabilities Education Act seeks to </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/992432.U.pdf">OPINION/ORDER</A><BR> Line 2 counsel's name is corrected to read </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca7.uscourts.gov/op/03/03-3829.PDF">OPINION/ORDER</A><BR> A rubble mound breakwater that was 45 feet long and 15 feet wide. A substantive written objection is </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/10circuit/nov96/95-9541.wpd.html">SIERRA CLUB V. EPA<BR></A><BR> Petitioners contend the Environmental Protection Agency's decision is unreasonable and contrary to the plain meaning of the Clean Air Act. Areas failing to meet the National Ambient Air Quality Standard for ozone are designated as </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/B6E2DFACADC1DE7F88256D8800789760/$file/0215027.pdf?openelement">OPINION/ORDER</A><BR> The Center brought this action pursuant to the citizen suit provision of the ESA alleging that the Fisheries Service was violating the consultation and take provisions of the ESA through the issuance of fishing permits to longline fishing vessels in California. The district court found that the issuance of permits under the Compliance Act does not invoke the consultation requirements of the ESA because the Fisheries Service did not have sufficient discretion to condition permits for the benefit of a protected species. Longline fishing involves the use of a line that stretches several miles from a vessel and is anchored to appropriate depths. Attached to the longline are many additional lines to which weights and baited hooks are fastened. Most U.S. vessels that engaged in longline fishing were based in Hawaii. Giving a 60 day notice of intent to sue for violations by the Fisheries Service of Sections 7 and 9 of the Endangered Species Act.3 The Center first contended that the Fisheries Service is violating Section 7 of the ESA by failing to initiate and complete consultations concerning the effects on threatened and endangered species of longline fishing by U.S. vessels. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200003/99-1176a.txt">OPINION/ORDER</A><BR> With him on the briefs were William P. With him on the brief were Joel I. Juhnke were on the brief for intervenors AT & T Corporation. A principal pur pose of the Collocation Order is to </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/4D377C9418B42EB488256E4E00784B23/$file/0215693.pdf?openelement">OPINION/ORDER</A><BR> The Property is the only location within Morgan Hill actually zoned for hospital use. Provided such uses are shown on the development plan for a particular PUD district as approved by the city council. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=05-1459_032.pdf">OPINION/ORDER</A><BR> Denver agreed to have United build the facilities that United would be using. United sought to have the bond related portions of the agreement severed from the rest of the agreement and treated as a loan rather than a lease for purposes of § 365 of the Bankruptcy Code. The agreement was a lease. It is helpful to explain briefly the importance of the lease versus loan distinction in this bankruptcy context. When a debtor's lease is at issue. If this is less than the balance due on the loan. The difference is an unsecured debt. The agreement is for a thirty one year term expiring on October 1. The primary purpose of the agreement was to facilitate United moving into and operating at the then new Denver International Airport for the aforementioned term. United's payments for its use of the ground are straightforward. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/36F241E6EF9CAD5988257015004E3218/$file/0135028.pdf?openelement">OPINION/ORDER</A><BR> Is amended as follows. Is deleted. Judge Berzon's opinion dissenting in part is amended as follows. Footnote 1 of the dissenting opinion is revised to read as follows: </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/july97/95-6850.opa.html">STONE & WEBSTER ENG'G CORP. V. HERMAN<BR></A><BR> This document was created from RTF source by rtftohtml version 2.7.5 > <title>Stone & Webster Eng'g Corp. v. It is the containment structure. It is also a bulwark against a variety of disasters. A fire in a drywell is a serious matter. For extinguishing a fire gone out of control is not easy.<p> Among the people best positioned to prevent fires are the workers who tend to nuclear plants. Congress forbade employers from retaliating against employees who act in prescribed ways to ensure safety. 42 U.S.C. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/mar99/98-6404.man.html">BILL HARBERT CONSTR. CO. V. CORTEZ BYRD CHIPS, INC. (3/9/1999, NO. 98-6404)<BR></A><BR> Senior Circuit Judge.</P> <P> PER CURIAM:</P> <P> This case arises out of a dispute over an arbitration award that was confirmed by the district court for the Northern District of Alabama. The sole issue on appeal is whether venue was proper in that court. While the agreement expressly stated that Mississippi law was applicable. Holding that venue was properly in the Alabama district court. Venue is permissive and is proper in the district court in Mississippi because he filed his action there first. We review the venue question de novo.</P> <P> The Federal Arbitration Act states that a motion to confirm an arbitration award<A HREF= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://vls.law.vill.edu/locator/3d/July2000/995206.txt">OPINION/ORDER</A><BR> Alleging that he was discharged because of his race in violation of 42 U.S.C. We will affirm the judgment of the District Court. It alleges that Zubi was discharged by AT&T because of his race on September 28. That </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/199903/98-1216a.txt">OPINION/ORDER</A><BR> Were on brief. Lichstein were on brief for the intervenor. IES and IPC filed an application to merge IES and IPC into WPL which was then to be renamed Interstate Energy Corp. At the time of the application WPL was the holding company of Wisconsin Power & Light Com pany. Which was both a public utility providing electricity in southern and central Wisconsin and itself the holding compa ny of South Beloit Water. IES was the holding company of IES Utilities. IPC was a public utility providing gas and electrici ty to customers in Minnesota. Under the merger proposal Interstate was to become the holding compa ny of WP&L (which would in turn continue to hold South Beloit Water. During 1997 the merger was approved separately by the Federal Energy Regulatory Commission (FERC) (November 12. Accept its interpretation of PUHCA if it </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//oct2001/00-15927.opn.html">PITTMAN V. COLE (10/3/2001, NO. 00-15927)<BR></A><BR> The court declined to address whether there was a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit/jan98/96-9297.man.html">BROOKER V. DUROCHER DOCK AND DREDGE (1/26/1998, NO. 96-9297)<BR></A><BR> Durocher was constructing a new seawall. The ALJ reasoned that the electric company </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/docs/common/opinions/200606/05-1404a.pdf">OPINION/ORDER</A><BR> With him on the briefs were Maureen E. With him on the brief were Samuel L. Were on the brief for respondent United States. Halama were on the brief for intervenors Verizon and Verizon Wireless in support of respondents. The Commission ruled that providers of broadband Internet access and voice over Internet protocol ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//july97/95-6850.opa.html">STONE & WEBSTER ENG'G CORP. V. HERMAN<BR></A><BR> This document was created from RTF source by rtftohtml version 2.7.5 > <title>Stone & Webster Eng'g Corp. v. It is the containment structure. It is also a bulwark against a variety of disasters. A fire in a drywell is a serious matter. For extinguishing a fire gone out of control is not easy.<p> Among the people best positioned to prevent fires are the workers who tend to nuclear plants. Congress forbade employers from retaliating against employees who act in prescribed ways to ensure safety. 42 U.S.C. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.kscourts.org/ca10/cases/2003/08/02-6169.htm">02-6169 -- KAW NATION V. SPRINGER -- 08/25/2003<BR></A><BR> 896 (10th Cir. 1992) (holding that this court will not consider an issue not properly raised below). The defense of qualified immunity is therefore moot. <u>See</u> <u>Griffin v. 554 (10th Cir. 1991) (holding that this court will not </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=99-1933.01A">OPINION/ORDER</A><BR> Adelson</U> were on brief. Navares</U> was on brief. At issue is whether a state. May be subjected to the ancillary enforcement jurisdiction of the federal courts on a theory that the judgment debtor in an action originally based on diversity is the alter ego of the state. We conclude that the state cannot be so subjected to federal court subject matter jurisdiction unless there is an independent basis for such jurisdiction.</FONT></P> <P><FONT FACE= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.cadc.uscourts.gov/common/opinions/200001/98-1398a.txt">OPINION/ORDER</A><BR> Was on the briefs for petitioner. Were on the brief for respondent. Jr. and Gunnar Birgisson were on the brief for intervenor. We hold that we have jurisdiction to review the Certificate Order. Because the Commission's decision was not arbitrary and capricious. The farm was established by an ancestor of Mr. Martin's in the early 1830s and the farmhouse and surrounding 112 acre tract are characteristic of early 19th century building and farming patterns. The property was listed in the National Register of Historic Places one year after the Commission authorized Portland to construct the pipeline. We must determine whether we have jurisdiction to hear his claim. It is clear from Mr. That what he really wants is review of the Certificate Order. Which is the order actually authorizing Portland to construct the pipeline across his property. Martin is aggrieved by the Certificate Order. An order denying rehearing is unreviewable except insofar as the request for rehearing was based upon new evidence or changed circumstances. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//jan98/96-9297.man.html">BROOKER V. DUROCHER DOCK AND DREDGE (1/26/1998, NO. 96-9297)<BR></A><BR> Durocher was constructing a new seawall. The ALJ reasoned that the electric company </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca6.uscourts.gov/opinions.pdf/00a0132p-06.pdf">OPINION/ORDER</A><BR> The Cities argue that their ordinances are reasonable occupancy 1 Housing Advocates also named the City of Richmond Heights. Although I concur in the majority's ultimate judgment that the ordinances at issue here were reasonable. I. Housing Advocates is a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.law.emory.edu/11circuit//mar99/98-6404.man.html">BILL HARBERT CONSTR. CO. V. CORTEZ BYRD CHIPS, INC. (3/9/1999, NO. 98-6404)<BR></A><BR> Senior Circuit Judge.</P> <P> PER CURIAM:</P> <P> This case arises out of a dispute over an arbitration award that was confirmed by the district court for the Northern District of Alabama. The sole issue on appeal is whether venue was proper in that court. While the agreement expressly stated that Mississippi law was applicable. Holding that venue was properly in the Alabama district court. Venue is permissive and is proper in the district court in Mississippi because he filed his action there first. We review the venue question de novo.</P> <P> The Federal Arbitration Act states that a motion to confirm an arbitration award<A HREF= </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=94-2286.01A">OPINION/ORDER</A><BR> Is amended as follows: On page 28. 1995 is corrected as follows: On the cover sheet. Will & Emery were on brief. Attorney General of Massachusetts was on brief. United States Environmental Protection Agency were on brief. Turns largely on the question of whether FFC is a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/08D4EB5631046BD388256EFC000A1ACC/$file/0216156.pdf?openelement">OPINION/ORDER</A><BR> Rick: I was misinformed. It was not Rick Blaine. The permit was required. The desert washes are considered navigable waters. It was not. I At the center of this controversy is a 608 acre parcel of undeveloped land ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=98-2061.01A">OPINION/ORDER</A><BR> Tucker & Ciandella were on brief for appellant. Will and Devine. P.C. were on brief for appellee. This is an appeal by the Town of Amherst. The background events are generally undisputed. Omnipoint is a major provider of wireless telephone service to the public. The town meeting legislates for the town and the Selectmen are the principal executive body. Amherst is divided into 13 districts. Although those prohibitions may be overcome if a variance is obtained. Towers are allowed only through the grant of a </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/E3A34778E18BBB028825731A004E54A2/$file/0516404.pdf?openelement">OPINION/ORDER</A><BR> Was on the brief for amicus curiae California School Boards Association Education Legal Alliance. Upheld the decision by the California special education hearing officer ( </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/021062.U.pdf">OPINION/ORDER</A><BR> Unpublished opinions are not binding precedent in this circuit. Which is operated by the Piedmont Triad Airport Authority (the Airport Authority). Although the EIS was not perfect. We hold that it was sufficient. 500 multi family homes are within a five mile radius of the Airport. Various expansion plans have been considered over the years. Solicited expansion proposals from airports in the Carolinas that were interested in accommodating a new FedEx mid Atlantic cargo hub. After PTIA was selected. FAA approval is necessary to expand the Airport and to make the project eligible for federal funding. One of the primary purposes of an EIS is to consider alternatives to the proposed project. The agency eliminated most of the alternative sites and configurations because they did not meet the requirements that the hub be located at PTIA and that the airport have two parallel. The five off site alternatives were eliminated at this first stage mainly because they were not at the PTIA location. Five of the ten on site alternative configurations were also eliminated. </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/012475.P.pdf">OPINION/ORDER</A><BR> Line 1 the phrase </TD> </TR> <TR CLASS="swhit"> <TD CLASS="swrank"><IMG SRC="/usca/images/score-3.gif" ALT="330"></TD> <TD CLASS="swtitle"><A HREF="http://pacer.ca4.uscourts.gov/opinion.pdf/951799.P.pdf">OPINION/ORDER</A><BR> We agree with the district court that the litigation which plaintiffs allege was objectively baseless was not sham. Hold that the court erred in deciding that the plaintiffs were collaterally estopped from relitigating facts found by a jury in a state court trial when those facts as found did not support a final judgment. Count XV (Virginia Conspiracy Act) since that part of its judgment was essentially based on the same collateral estoppel. I. There being no claim they are erroneous. Summarize the following facts which are pertinent to this appeal. Levine explained repayment would be required when construction was complete. McLeskey and the Levines have had a long standing dislike for each other

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