context: Therefore, to the extent that the government's defense based on federal common law fraud was not explicitly appealed, we find that the defense "is inextricably linked to, and is thus 'fairly included' within, the questions presented." Moreover, under these circumstances, we can exercise our discretion to apply federal common law in this case.
citation_a.signal: no signal
citation_a.identifier: 500 U.S. 90, 99
citation_a.parenthetical: "When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law."
citation_a.sentence: Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (“When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.”); Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed.Cir.1990) (stating that “practice of [waiving an issue not raised by an appellant in its opening brief] is, of course, not governed by a rigid rule but may as a matter of discretion not be adhered to where circumstances indicate that it would result in basically unfair procedure”); cf. Harris Corp. v. Ericsson Inc., 417 F.3d 1241, 1251-52 (Fed.Cir.2005) (stating that “[a]n appellate court retains case-by-case discretion over whether to apply waiver,” and holding that claim construction arguments “advocating the same concept” are properly addressed).
citation_b.signal: cf.
citation_b.identifier: 417 F.3d 1241, 1251-52
citation_b.parenthetical: stating that "[a]n appellate court retains case-by-case discretion over whether to apply waiver," and holding that claim construction arguments "advocating the same concept" are properly addressed
citation_b.sentence: Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (“When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.”); Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed.Cir.1990) (stating that “practice of [waiving an issue not raised by an appellant in its opening brief] is, of course, not governed by a rigid rule but may as a matter of discretion not be adhered to where circumstances indicate that it would result in basically unfair procedure”); cf. Harris Corp. v. Ericsson Inc., 417 F.3d 1241, 1251-52 (Fed.Cir.2005) (stating that “[a]n appellate court retains case-by-case discretion over whether to apply waiver,” and holding that claim construction arguments “advocating the same concept” are properly addressed).