38 F.3d 609
309 U.S.App.D.C. 34
Tanya SMALLS, Appellant,
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.
United States Court of Appeals, District of Columbia Circuit.
Oct. 11, 1994.
NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.
Before: BUCKLEY, SENTELLE and RANDOLPH, Circuit Judges.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. The court has determined that the issues presented occasion no need for an opinion. See D.C.Cir.Rule 36(b). It is
ORDERED AND ADJUDGED that the judgment on the jury verdict issued October 30, 1992, be vacated and the case remanded to the district court for further proceedings consistent with this order, due to an intervening change in circuit law. Based upon the holding in Hemphill v. WMATA, 982 F.2d 572 (D.C.Cir.1993), it is clear that the "claims-minded plaintiff" instruction should not have been given in the absence of evidence that Smalls' previous claims were fabricated. This error cannot be deemed harmless. See Hemphill, 982 F.2d at 575. Although Hemphill issued after completion of the proceedings below, its holding is applicable to Smalls' appeal. See I.A.M. Nat'l Pension Fund, Plan A, A Benefits v. Clinton Engines Corp., 825 F.2d 415, 423 (D.C.Cir.1987) (judicial precedents generally apply not only prospectively but also to all cases pending at the time they are decided unless application of the new precedent would work a manifest injustice).
The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 41.