Rocky Mountain Appellate Blog

10th Circuit to Hold Appellate Practice Seminar

During the next oral argument term, the Tenth Circuit and the Federal Public Defender's Office for the Districts of Colorado Wyoming will present a four-hour CLE program on handling criminal appeals in the Tenth Circuit.  The presenters will include several experienced appellate attorneys from the FPD's office, as well as Betsy Shumaker, the Clerk of Court for the Tenth Circuit.  The program will also include a question-and-answer session with a panel of Tenth Circuit Judges.

The program is scheduled for October 2, 2007 from 1:00 to 5:30 in Denver, and four hours of CLE credit has been applied for in all six states in the Tenth Circuit.  Registration is open to all attorneys, and the cost is a nominal $10.  Further information on registration can be obtained by e-mailing SueAnn_Fitch@ca10.uscourts.gov.

Kansas Students Lack Standing To Challenge In-State Tuition Rates For Illegal Aliens

In Day v. Bond, No. 05-3309, the Tenth Circuit held that students at state universities in Kansas and their parents, lacked standing to challenge a law that permitted certain illegal aliens to qualify for in-state tuition rates.  The plaintiffs alleged that the statute, § 76-731 violated the Equal Protection Clause of the Fourteenth Amendment and was preempted by 8 U.S.C. § 1623 (a section of the federal immigration law).  The Court held that the plaintiffs lacked standing to bring their equal protection claim because two of their theories of standing failed to allege a concrete and non-speculative injury, and with respect to the other two theories, the plaintiffs could not show that their asserted injury was proximately caused by the statute or that the injury could be redressed by a decision in their favor.  With respect to the preemption claim, the Court held that §1623 did not vest a right in plaintiffs to assert preemption.

 

Three-Judge Panel Decision Produces Three Separate Opinions

I normally try to avoid reading appellate decisions involving bankruptcy law because they tend to induce a comatose-like stupor.  However, In re Johnson, which was issued by the Tenth Circuit yesterday, caught my eye because it resulted in three separate opinions from a three-judge panel.

In Johnson, the Tenth Circuit affirmed a bankruptcy court's holding that a creditor had willfully violated the automatic stay.  The debtors financed the purchase of a truck from an auto retailer, and filed for bankruptcy a short time later.  The auto retailer, apparently unaware of the bankruptcy filing, repossessed the truck three days after the filing.  The debtors' attorney then called the retailer to inform it of the bankruptcy and demand that the truck be returned, but the retailer refused, suspecting that the phone call was merely a ruse by the debtors to illegally recover the truck.

Judge McKay wrote the majority opinion in which he concluded that the retailer had willfully violated the automatic stay.  Judge Kelly dissented from this portion of the majority opinion, launching an impassioned defense of the retailer, whose actions Judge Kelly deemed perfectly reasonable under the circumstances.

Although Judge McKay's majority opinion ably responded to Judge Kelly's arguments, the third member of the panel, Judge Briscoe, felt compelled to file her own concurring opinion clarifying why she agreed with Judge McKay that the district court did not err in finding that the retailer had willfully violated the automatic stay.

Prior this decision, I can't remember ever seeing a three-judge panel decision of the Tenth Circuit that produced three separate opinions.

Doctor. Doctor. Glad I’m Not Sick*

When doctors fight, things can get messy. Dr. Parriott. was sued for malpractice (he later settled for $10,000. You can draw your own conclusions about the merits of the suit). Dr. Bundren provided an expert report critical of Dr. Parriott. Dr. Parriott then reported Dr. Bundren to the American College of Obstetricians and Gynecologists (of which both doctors were fellows), alleging, by checking a box on a form, that Dr. Bundren had made factual misrepresentations and/or committed perjury in submitting his report. Dr. Bundren believed that the College would be biased against him, so he sued Dr. Parriott for defamation, tortious interference with prospective business advantage, and tortious interference with contract. The District Court granted summary judgment for Dr. Parriott. and the Tenth Circuit affirmed, finding that Dr. B had failed to establish the elements of his claims.

This case, Bundren v. Parriott, No. 06-3270, has an excellent discussion of the elements of defamation, tortious interference with prospective business advantage, and tortious interference with contract. However, it dodges the application of the Health Care Quality Improvement Act (42 U.S.C. § 11112(a)), which provides qualified immunity for doctors and others who participate in peer review proceedings. The Tenth Circuit found that the District Court’s analysis was insufficient to support qualified immunity under the HCQIA. Rather than undertaking an HCQIA analysis as part of its de novo review however, the Tenth Circuit affirmed the District Court based on its merits analysis.

* With apologies to Spies Like Us.

Is This a Circuit Split?

In a decision I mentioned briefly last week and discussed at length earlier this year, the Tenth Circuit (per Judge Lucero, joined by Judges Henry and McConnell) held that a sentencing court must give pre-hearing notice of its intent to vary from the Guideline range, and must identify each and every ground it is considering in support of that sentence.  United States v. Atencio.  That decision elicited a vehement dissent from the denial of en banc review, filed by Judge Murphy (joined by Judges Kelly and Briscoe).

The Second Circuit has now created a circuit split on the issue presented in Atencio -- or at least I think it has.  In United States. v. Altman, the court held that District courts are not required to give notice before imposing a sentence outside the guidelines range.  Altman, however, was a case in which the defendant was sentenced for violations of his supervised release under Chapter 7 of the Sentencing Guidelines.  The Altman court noted that, in the same context, the Tenth Circuit recently has agreed (in an unpublished decision) that no notice need be given when the sentencing court varies from the Guideline range.  United States v. Shields.  The Altman court made no mention of Atencio.  (Click here for a summary of Altman from the New York Law Journal.)

The Shields court noted there is "some tension" between its holding and the panel's (published) holding in Atencio.  That seems to me to be something of an understatement.  Although I am not sure that I agree with the Atencio holding, the court in Shields did not appear to me to attempt any principled explanation for why the Chapter 7 distinction should lead to a different conclusion.

A Tough Defendant

I remember thinking that Aaron Charney, the young associate at Sullivan & Cromwell who filed a pro-se complaint suing the firm for sexual discrimination, was some combination of courageous and crazy, and almost certain to be run over by the legal equivalent of a steamroller.  Gabriella Smith displayed something similar when she sued her employer, the Tulsa County District Attorney’s Office, for gender discrimination (although she does not, at least, appear to have done so pro se). She lost on summary judgment, and the decision was affirmed by the Tenth Circuit.  For those with an interest in employment law, this case contains a fairly thorough application of the McDonnell Douglas factors, but the short version is that the Tenth Circuit held that while Ms. Smith had presented a prima facie case, she had failed to present evidence from which a reasonable factfinder could determined that the reasons for her termination were a pretext. At least Charney’s suit is still alive.

The Newtonian Pull of the Sentencing Guidelines

In the Supreme Court's decision in United States v. Booker, the Court held that the Sentencing Guidelines are merely advisory, so that district courts ostensibly have the discretion to impose a sentence falling outside the range set by the Sentencing Guidelines. That discretion has turned out to be more theoretical than real, and in a decision issued yesterday, the Tenth Circuit again struck down an effort by a district court to impose a sentence outside the Guideline range.  United States v. Garcia-Lara. However, Judge Lucero filed a dissenting opinion, thus joining the growing minority of judges who have expressed disagreement with this anti-Booker line of decisions.

In Garcia-Lara, the defendant pleaded guilty to a count of possession with intent to distribute 500 grams of methamphetaine. Based on his two prior drug convictions, the "career offender" enhancement kicked in, resulting in a Guideline range of 262 to 327 months. The district court determined that the Guideline range "over-represented" the defendant's criminal history, and sentenced him to 140 months.

The government challenged the sentence on appeal, and the Tenth Circuit, per Chief Judge Tacha, reversed. Using the Tenth Circuit's "sliding scale" approach, the court deemed the district court's 122-month variance from the Guidelines "substantial," thus requiring "compelling reasons" to support it. The court concluded that the divergence was not supported by "compelling reasons," and reached this conclusion mainly by recounting the defendant's criminal history in great detail and, in light of that criminal history, rejecting the district court's view that he should not have been treated as a "career offender."

In dissent, Judge Lucero became the most recent Tenth Circuit judge to express frustration at the court's failure to abide by the spirit of Booker: "[T]he Newtonian pull of the Guidelines toward a near-mandatory center remains." This is a shorter and pithier version of Judge Murphy's formulation in a concurring opinion from last year: "It is odd, indeed, to see how quickly the appellate standard of reasonableness set out in Booker has morphed into a mathematical exercise pegged exclusively to those sentencing factors in s. 3553(a) relating to the advisory Guidelines."

Judge Lucero also disagreed with the majority's view of United States v. Rita, a Supreme Court decision from last term that ostensibly clarified the appellate standard of review in the post-Booker world. The majority seemed to think that Rita didn't really change anything, while Judge Lucero believes that the Rita court intended a more deferential standard of review for sentences outside the range set by the Guidelines.

Yesterday's dissenting opinion notwithstanding, Judge Lucero arguably threw roadblocks in the way of sentencing courts' Booker discretion in his Atencio opinion from earlier this year. In that decision, Judge Lucero's panel opinion held that a district court must give pre-hearing notice of its intent to vary from the Guideline range, and must identify each and every ground it is considering in support of that sentence. These opinions aren't necessarily inconsistent, of course -- unlike Garcia-Lara, Atencio involved a sentence far above the Guidelines range.

Getting Around Westlaw

Via Professor Glenn Reynolds at Instapundit, there's a new internet search engine for decisions of the federal appellate courts and U.S. Supreme Court:  altlaw.org.  From the website's "about" page:

The law is meant to belong to the people, but it can be surprisingly hard to find. Case reports, a major part of the laws of the United States, are hard to get at, and even when on the Internet, rarely searchable. To get full access you generally need either a library of law reports, or an expensive subscription to an online database, which can cost hundreds of dollars per hour.

AltLaw is a small effort to change that—to make the common law a bit more common. AltLaw provides the first free, full-text searchable database of Supreme Court and Federal Appellate case reports. It is a resource for attorneys, legal scholars, and the general public.

I've tried a few searches on it, and it's not bad -- a decent alternative when you're trying to keep your client's costs down.

According to the website, altlaw.org is a joint project of the University of Colorado Law School and Columbia Law School.

DNA Testing of Parolees

The defendant in United States v. Cooper, No. 06-6309 appealed, among other things, a requirement that he submit a DNA sample as a condition of his supervised release.  The Tenth Circuit held that his appeal was barred by the waiver of a right to appeal contained in his plea agreement. As a legal matter, the court considered this issue to involve nothing more than the application of well-settled principles.  The facts, however, are a little disturbing and they suggest that a more aggressive argument by the defendant might have lead to a different result.  The defendant apparently waived the questions of whether his waiver was knowing and voluntary and whether enforcement of the waiver would result in a miscarriage of justice, which are normally part of the court’s analysis in enforcing an appeal waiver. The defendant is a classic white-collar criminal (he defrauded investors and others while employed as a Merrill Lynch stockbroker).  The implication of a DNA requirement in his plea agreement is that there is a general policy to require anyone pleading guilty to agree to submit a DNA sample.  Considering the huge pressures that must go into choosing to accept or reject a guilty plea, this seems like little more than an underhanded way to build a DNA database (for reasons only loosely connected to the defendant’s parole) based on “consents” that are highly pressured.   I would have liked to see the argument that enforcing a wavier of a right to at least challenge a DNA requirement imposed under these circumstances would result in a miscarriage of justice put before the court.

10th Circuit Panel Slams Trial Court's Refusal to Impose Penalties and Attorney Fees in Clean Air Act Case

Between 1996 and 2005, Airosol Company Inc. sold 64,017 twelve-ounce cans, and 548 twelve-pound cylinders, of a pesticide containing substances banned by the Clean Air Act.  The EPA took no action, so one of Airosol's competitors, Pro Products Inc., brought a citizen suit under the CAA.  Remarkably, the district court refused to impose penalties against Airosol and denied Pro Products its attorney fees based mainly on its conclusion that Pro Products brought suit for economic reasons and not out of concern for the environment.

The Tenth Circuit, not surprisingly, reversed.  Pound v. Airosol Co., No. 06-3299.  "[T]he fact that a citizen-suit plaintiff may have an economic interest in the outcome of the litigation does not justify mitigation of the penalties against the violator.  To the contrary, one of the purposes of these penalty provisions is to ensure that companies like Airosol do not gain a competitive advantage from violating the CAA."  The court further held that Pro Products succeeded on the merits for purposes of attorney fees even though penalties were not awarded.

Perhaps the district court's holding was the result of able trial lawyering by Airosol's counsel, who persuasively sold a trial theme -- Pro Products just wants my client out of business! -- that won the district court over entirely.  While that may be the case, the district court's opinion is remarkable for having gotten it dead wrong on virtually every possible substantive point.  I've read through the Tenth Circuit's decision twice and did not find one substantive point on which the Tenth Circuit agreed with the district court.