December 16, 2017

Tenth Circuit: Workers’ Compensation Case Reversed Because Interpretation of Policy was Arbitrary and Capricious

The Tenth Circuit Court of Appeals issued its opinion in Owings v. United of Omaha Life Insurance Co. on Tuesday, October 17, 2017.

The plaintiff in this case, Owings, suffered a disabling injury while on the job and was afforded long-term disability benefits by the defendant, United of Omaha Life Insurance Company (United). Owings disagreed with the amount and beginning date of his disability benefits and filed suit. The district court granted summary judgment in favor of United, and Owings appealed.

Owings injured his back at work on July 1, 2013 while moving a surgical chair and cabinet, which left Owings unable to lift, bend, stoop, carry, push, and pull, resulting in Owings experiencing long-term back pain and spasms. The same day of his injury, Owings met with Bratton, the Director of Human Resources at United, who informed Owings that his title would be changed and his salary reduced, effective immediately. Owings went home and did not work for the company thereafter. Owings then applied for short-term disability benefits with United. As part of his application, Owings described the incident and the date it occurred, as well as statements from his employer and treating physician, Dr. McClintick. Dr. McClintick listed the “Date symptoms first appeared” as July 1, 2013, also noting that Owings had been continuously disabled and unable to work from the same date. Bratton, however, completed and signed an “Employer’s Statement” form for United, where she stated that Owings disability resulted from a previous injury and his last day of work was July 2, 2013.

Owings applied for long-term disability and was approved, although the letter stated that Owings became disabled on July 3, 2013. Owings, through his attorney, sent a letter to United asking for the date of disability to be changed to July 1, 2013. In response, United asked for copies of all of Owings’ time sheets. Bratton emailed Union twice with conflicting dates on Owings’ last day, but ultimately concluded that Owings left work at some time on July 2, 2013. Relying on this information, United denied the request to adjust Owings’ disability date, explaining that July 3 was the first day Owings was unable to work, since his employer verified he had worked July 2. United would only pay Owings the discounted salary set forth by Britton on July 1st. Owings subsequently filed suit.

Owings’ complaint is governed by the Employee Retirement Income Security Act (ERISA). A benefits decision under an ERISA-governed plan is generally left to the discretion of the administrator in determining the terms of the plan and of determining eligibility. In this case, the policy afforded United the discretion and final authority to construe and interpret the policy. The Tenth Circuit then examined whether the benefits decision at issue was arbitrary and capricious, limiting the review to determining whether the interpretation of the plan was reasonable and made in good faith.

Owings asserted that United abused its discretion in interpreting the term “disability” when calculating the amount of his monthly long-term disability benefit under the policy. Owings argued that the policy defined disability by reference to the inability to perform at least one of the material duties of his regular occupation, whereas United omitted the phrase “at least one of” to modify the policy to include each and every job duty.

The Tenth Circuit found United’s definition of disability to be inconsistent with the plain language of the policy, which requires only that the injury prevent the employee from being able to perform one material duty of occupation. The Tenth Circuit therefore found United’s definition of disability arbitrary and capricious.

The next issue was that United prohibited an employee from being declared disabled on the last day that he or she worked. United argues that Owings performed his job with no impairment for at least part of the day on July 1, so the earliest possible date disability could begin was on July 2. The Tenth Circuit found that United’s explanation could not be inferred from the policy’s definitional section. Nothing in the policy supported United’s conclusion that an employee cannot become immediately disabled after working for part of the day.

A third issue was whether United erred in relying exclusively on the statements from Bratton. The Tenth Circuit found that the record established, without question, that United rejected Owings’ initial request to adjust his disability date, as well as his subsequent administrative appeal, due to Bratton’s statements. The Tenth Circuit held that United erred in blindly relying on Bratton’s statements, as the determination should not have been based on whether Owings worked on a particular day, but rather on which day he sustained his injury.

The Tenth Circuit found that it was undisputed that Owings became injured on July 1. Owings’ treating physician identified July 1 as the date Owings was first unable to work. The only work Owings did on July 2 consisted of using the company cell phone; he did not physically go to the workplace. For these reasons, the Tenth Circuit concluded that United acted arbitrarily and capriciously in interpreting and applying the policy language. Under plain and ordinary meaning of the policy language, Owings became disabled on July 1, 2013. The proper remedy was to reverse the district court’s grant of summary judgment in favor of United.

The Tenth Circuit Court of Appeals REVERSED and REMANDED with directions to enter summary judgment in favor of Owings.

Tenth Circuit: Colorado RTD Manager Found Guilty of Bribery

Tenth Circuit Court of Appeals issued its opinion in United States v. Hardin on Wednesday, October 25, 2017.

Defendant Hardin was the senior manager for the Regional Transportation District (RTD) in Colorado. Part of Hardin’s job responsibilities included setting goals on projects for small business participation and ensuring compliance of small business participation on various projects. Ward was the owner of a busing company as well as a manufacturing representative for Build Your Dream, a manufacturer of automobiles and rechargeable batteries. Ward represents Build Your Dream to sell their merchandise in Denver.

Ward’s busing company contracted with RTD as a service provider for Access-a-Ride, a program that provides local bus transportation in Denver for people with disabilities. From that point on, Ward paid Defendant monthly bribes in exchange for Defendant’s help to secure a contract with RTD, as RTD was preparing to solicit bids for the purchase of shuttle buses. Ward would meet with Defendant every month and pay Defendant to help Ward win the contract. Further, Defendant gave Ward information on potential competitors to allow Ward to tailor his proposal to RTD.

Unbeknownst to Defendant, Ward had previously pleaded guilty to tax evasion and, to receive a reduced sentence, relayed Defendant’s original bribe request to the Federal Bureau of Investigation. Ward then became the FBI’s confidential informant to investigate Defendant for bribery. The meetings and conversations between Ward and Defendant were all recorded.

Defendant was charged with four counts of committing bribery involving a program that receives federal funds. The jury found Defendant guilty of three counts relating to the proposed shuttle bus contract. Defendant appealed, arguing that, by dismissing one count, it could not be shown that he had solicited the requisite $5,000 threshold that is set by the federal-program bribery statute. The Tenth Circuit found that the $5,000 pertains to the subject matter of the bribe and Ward paid for Defendant’s help with respect to the lucrative shuttle bus purchase contract. The Tenth Circuit was persuaded that the statute was sufficiently definite to give Defendant fair notice of the criminality of his conduct.

The Tenth Circuit Court of Appeals AFFIRMED Defendant’s conviction and sentence.

Tenth Circuit: Appeal of Fracking Regulation Unripe Due to Uncertainty of Future

The Tenth Circuit Court of Appeals issued its opinion in State of Wyoming v. Zinke on Thursday, September 21, 2017.

In this case, the Tenth Circuit Court of Appeals is asked to decide whether the Bureau of Land Management (BLM) acted beyond its statutory authority when it created a regulation that governed hydraulic fracturing (fracking) on lands owned by the United States.

As fracking has become more common, public concern has increased about whether fracking is contributing to contamination of underground water sources. The BLM responded by preparing a regulation that attempted to modernize the existing federal regulations governing fracking on lands owned by the United States by increasing disclosure of the chemicals used in fracking, updating the standards for wellbore construction and testing, and addressing management of water used in the fracking process.

The finalized, published fracking regulation attempted to regulate fracking in four ways: by (1) imposing new well construction and testing requirements; (2) imposing new flowback storage requirements; (3) imposing new chemical disclosure requirements; and (4) generally increasing BLM’s oversight of fracking.

Shortly before the fracking regulation was to take effect, the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA) filed a petition for review under the Administrative Procedure Act (APA), opposing the new regulation. North Dakota, Utah, and the Ute Indian Tribe also intervened.

The petition for review asserted that the fracking regulation violated two provisions of the APA in two ways: (1) the regulation was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; and (2) it was in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.

The district court concluded that no statute authorized the BLM to regulate fracking. The district court reasoned that states may regulate underground injections of any substance, not the federal government. According to the district court, only the states could regulate fracking.

While the parties supporting the regulation brought an appeal, the BLM asked this court to hold these appeals in abeyance, explaining that President Trump’s Executive Order required the Department of the Interior to review its regulations, including the fracking regulation, for consistency with the policies and priorities of the new administration. Another Executive Order directed the Secretary of the Interior, as soon as practicable, to publish for notice and comment proposed rules suspending, revising, or rescinding the fracking regulation at issue. The Secretary of the Interior then stated that the BLM would rescind the regulation in full.

The issue addressed in this appeal is whether the BLM has the authority to regulate fracking on lands owned or held in trust by the United States and thereby to promulgate the fracking regulation. The Tenth Circuit Court of Appeals held that the case was not ripe for review, as there was no hardship to the parties. The only harm suffered will be the continued operation of oil and gas development on federal lands, which represents no departure from the status quo since 2015. Further, the BLM will be able to proceed with its proposed rule rescinding the fracking regulation, and would face more uncertainty if these appeals were to remain under advisement. The appeal was held to be unripe and unfit for judicial review.

The Circuit dismissed the appeals, finding that the subject matter is unripe and the record is notably undeveloped or the future is particularly uncertain.

The Tenth Circuit Court of Appeals DISMISSED the appeals as prudentially unripe, VACATED the district court’s judgment invalidating the fracking regulation, and REMANDED with instructions to dismiss the underlying action without prejudice.

Tenth Circuit: Plaintiff’s Request for Immediate Release from Federal Custody Denied Under ACCA’s Enumerated Clause

The Tenth Circuit Court of Appeals issued its opinion in United States v. Snyder on Thursday, September 21, 2017.

This case arose from Snyder’s request for immediate release from federal custody on the basis that he had already served more than the maximum sentence allowed by law. Snyder argues that the Supreme Court’s recent decision in Johnson v. United States invalidates his sentence enhancement under the Armed Career Criminal Act (ACCA). The district court denied Snyder’s motion, and the Tenth Circuit Court of Appeals affirmed the denial, concluding that Snyder was not sentenced based on the ACCA’s residual clause that was invalidated in Johnson.

In 2004, Snyder pled guilty to being a felon in possession of a firearm. A presentence report was prepared and concluded that Snyder was subject to an enhanced sentence as an armed career criminal because he had sustained two convictions for burglary of two residences, and had a conviction of a controlled substance offense. Snyder’s argument that his burglary convictions failed to constitute predicate offenses under the ACCA were rejected by the district court.

In 2015, the Supreme Court decided Johnson. Snyder subsequently filed a motion to vacate his sentence for immediate release, asserting that, following the Court’s decision in Johnson, his burglary convictions no longer qualify as predicate offenses under the ACCA, so he is not an armed career criminal, and his enhanced sentence exceeds the maximum authorized by law.

The Circuit first determined whether the district court erred in concluding that Snyder’s motion was not timely.  By the plain language of the statute in question, the statute allows a motion to be filed within one year of the date on which the rights asserted was initially recognized by the Supreme Court. The Circuit concluded that to be timely, a motion need only to invoke the newly recognized right, regardless of whether the facts of record ultimately support the claim, and found that Snyder’s motion did just that.

The court then discussed whether Snyder had overcome the procedural-default rule, which is a general rule that claims not raised on direct appeal may not be raised on collateral review unless the petitioner can show cause and prejudice.

Cause is shown if a claim is so novel that its legal basis was not reasonably available to counsel at the time of the direct appeal. The Supreme Court has stated that if one of its decisions explicitly overrides prior precedent, then, prior to that decision, the new constitutional principle was not reasonably available to counsel, and defendant has cause for failing to raise the issue. The Johnson claim was not reasonably available to Snyder at the time of his direct appeal, and the Circuit found this sufficient to establish cause.

To establish actual prejudice, the Circuit held that Snyder must show that the error of which he complains is an error of constitutional dimensions and worked to his actual and substantial disadvantage. The Circuit found that Snyder has shown actual prejudice through his argument that the ACCA sentence enhancement is invalid after Johnson. The court concluded this by acknowledging that if Snyder is correct, he should have been sentenced to only ten years maximum, not eighteen as he had been sentenced. The sentence of eighteen years would then be unauthorized under law, creating an actual and substantial disadvantage of constitutional dimensions.

The Circuit next discusses the merits of Snyder’s claim. Snyder alleged that the sentence was imposed under an invalid legal theory and that he was, therefore, sentenced in violation of the Constitution. In order to make a determination, the relevant background of the legal environment at the time of sentencing must be evaluated. The Circuit held that the actual facts of record in this matter offered no basis whatsoever for the notion that the sentence Snyder received was based on the ACCA’s residual clause, rather than its enumerated offenses clause. The Circuit found no mention of the residual clause in the presentence report or any other pleading or transcript. Further, given the relevant background legal environment that existed at the time of Snyder’s sentencing, there would have been no need for reliance on the residual clause. The Circuit concluded that Snyder’s claim failed because the court’s ACCA’s determination at the time of sentencing rested on the enumerated crimes clause rather than the residual clause.

The decision of the district court denying Snyder’s motion is AFFIRMED by the Tenth Circuit Court of Appeals.

Tenth Circuit: Chicken Farmer Prejudiced by District Court’s Judgment on Basis Not Raised by Either Party

The Tenth Circuit Court of Appeals issued its opinion in Oldham v. O.K. Farms, Inc. on Monday, September 25, 2017.

Plaintiff, Earl Oldham, had entered into a contract with O.K. Farms (O.K.), which contract is at issue in this case. Under the contract, O.K. would provide Oldham with chickens to raise, the chickens would remain O.K.’s property, and Oldham would be paid for providing their care. Although the contract had a three-year duration, O.K. retained the right to terminate the contract for certain specified reasons, including breach of any term or condition of the contract, abandonment or neglect of a flock, and failure to care for or causing damage to O.K.’s equipment or property.

Early one morning, Oldham discovered one of his three chicken houses had flooded and contacted O.K. requesting help. Oldham then briefly left the farm to open his tire shop, and when he returned, he was informed by an O.K. field technician that it was his problem, not O.K.’s, and Oldham would have to deal with it. Oldham began complaining at the lack of help provided by O.K. and requested they come and get all of the chickens.

An O.K. crew arrived at Oldham’s farm, removed the live chickens, and brought them to a nearby farm to be raised by a different farmer. Oldham was paid for the work he had done raising the chickens to that point, reduced by the cost of catching and moving the chickens. O.K. subsequently sent Oldham a letter, providing him with a ninety-day notice of contract termination. O.K. provided its reasoning behind termination of the contract: (1) Oldham breached the terms and conditions of the contract by failing to adequately provide for the animal welfare of the chickens in his care; (2) Oldham abandoned and neglected the flock to open his tire shop when the chickens were encountering a threat to their welfare; and (3) the flooding in the henhouse damaged O.K.’s property, the chickens.

In response to these allegations, Oldham contended the flooding was the result of an act of God, not neglect. As for the abandonment argument, Oldham argued that he did not abandon the chickens by leaving for fifteen to twenty minutes while an O.K. field technician was at the scene telephoning his supervisor to determine what they should do about the situation.

This appeal follows the district court’s granting of summary judgment in favor of O.K. on the premise that Oldham abandoned the flock when he requested O.K. come pick up all of the chickens, not just the ones in the flooded henhouse.

After carefully reviewing the summary judgment record and the parties’ arguments, the court determined that the district court granted judgment on a basis that was not raised by O.K. or briefed by either party. The only argument regarding abandonment that O.K. raised in its brief was the argument that Oldham abandoned the flock by leaving to open his tire shop. O.K. never raised any argument that Oldham abandoned his flock by telling O.K. to come get all of the birds.

The rules of civil procedure permit a district court to grant summary judgment on grounds not raised by a party, but only after giving notice and a reasonable time to respond. The district court gave no notice that it intended to grant summary judgment on a basis that was not raised by O.K., nor did the district court give Oldham any time to respond to this decision, much less reasonable time to consider the new theory and develop the arguments to dispute it. The court found that Oldham was prejudiced by this lack of notice and opportunity to respond.

In order to establish the requisite prejudice, the losing party must identify what additional arguments he could have made or evidence he could have produced or relied on to undermine the district court’s ruling. In this case, Oldham evidenced that he was motivated by concern for all of the other chickens’ welfare in telling O.K. to pick up all of the chickens, as there was more rain forecasted and he did not want another henhouse to be flooded. This concern for the chicken’s welfare might have been relevant to the district court’s holding that Oldham legally abandoned the chickens. The court found that this information was enough to show prejudice.

The Tenth Circuit Court of Appeals REVERSED and REMANDED for further proceedings.

Tenth Circuit: Social Worker Not Entitled to Qualified Immunity after Violating Defendant’s Constitutional Rights

The Tenth Circuit Court of Appeals issued is opinion in T.D. v. Patton on Monday, August 28, 2017.

Ms. Patton is a social worker for the Denver Department of Human Services (DDHS) and was responsible for removing T.D., a minor, from his mother’s home, and recommending T.D. remain in the temporary custody of his father, Duerson. T.D. was removed from Duerson’s home after DDHS made a determination that T.D. had suffered physical and sexual abuse at the hands of his father. This case concerns Ms. Patton’s motion for summary judgment on the grounds that she is entitled to qualified immunity.

The Tenth Circuit Court of Appeals concluded that Ms. Patton violated T.D.’s clearly established substantive due process constitutional right to be free of a state official’s creation of danger from a private actor under a danger-creation theory. The court found that Ms. Patton violated T.D.’s substantive due process right by knowingly placing T.D. in a position of danger by recommending that T.D. be placed in Duerson’s custody despite admitted concerns about T.D.’s safety, her knowledge of Duerson’s criminal history and conviction for attempted sexual assault against a minor, and failure to investigate whether Duerson was abusing T.D. despite her awareness of evidence of potential abuse. The court found that Ms. Patton acted recklessly and in conscious disregard of a known and substantial risk that T.D. would suffer serious, immediate, and proximate harm in his father’s home.

Under 42 U.S.C. § 1983, a person acting under color of state law who subjects any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution shall be liable to the injured party. However, a defendant in an action may raise a defense of qualified immunity, which shields public officials from damages unless their conduct was unreasonable in light of law. Once a defendant asserts qualified immunity, the plaintiff has the burden to show that the defendant’s actions violated a federal constitutional or statutory right and that the right was clearly established at the time of the defendant’s unlawful conduct.

The court first evaluated whether the facts satisfied T.D.’s claim of danger-creation. The court considered whether Ms. Patton created or increased the danger posed to T.D. The court concluded that Ms. Patton’s actions amounted to a failure to investigate evidence that Duerson was abusing T.D., satisfying the first element. The second element is whether T.D. was a member of a limited and specifically definable group. The court held that because the state removed T.D. from his natural parent and took him into state custody, T.D. fell within a limited and specifically definable group of children.

Third, Ms. Patton’s conduct put T.D. at substantial risk of serious, immediate, and proximate harm. This is evidenced by Ms. Patton withholding relevant information and recommending T.D. be placed with his father, by failing to investigate evidence of potential abuse, and by continuing to recommend T.D. remain with his father.

The court discussed the fourth and fifth elements simultaneously. Ms. Patton acted recklessly and in conscious disregard of a risk (element 4) that was obvious or known (element 5). Ms. Patton knew of Duerson’s criminal history, but deleted those concerns for fear of being fired. She further withheld concerns of T.D.’s safety and concerns, stemming from her professional judgment, that T.D. should be removed from the home. Her intentional exclusion of her knowledge and concerns from her hearing report showed she acted recklessly and in conscious disregard of an obvious or known risk that Duerson posed to T.D.

The last element is satisfied by Ms. Patton’s conscience-shocking conduct. Ms. Patton’s conduct was held to significantly exceed ordinary negligence or permitting unreasonable risk and rose to a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.

In sum, Ms. Patton’s conduct violated T.D.’s substantive due process right by creating or increasing T.D.’s vulnerability to the danger of private violence by Duerson.

The court found that the law was clearly established at the time of Ms. Patton’s misconduct. The court held that a reasonable official in Ms. Patton’s shoes would have understood that she was violating T.D.’s constitutional right by creating or increasing T.D.’s vulnerability to the danger posed by Duerson.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s DENIAL of summary judgment.

Tenth Circuit: Mandatory Minimum Sentence Provision in Child Pornography Statute Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in United States v. Haymond on Thursday, August 31, 2017.

This appeal comes from the district court’s decision to revoke Andre Haymond’s supervised release based, in part, on a finding that Haymond knowingly possessed thirteen images of child pornography, which were found on his phone by his probation officer. On appeal, Haymond argued that the evidence was insufficient to support a finding by a preponderance of the evidence that he knowingly possessed child pornography, and he argued that the sentence imposed upon him is unconstitutional because it violates his right to due process. The Tenth Circuit Court of Appeals affirmed the district court’s revocation of Haymond’s supervised release, but holds that the sentencing was unconstitutional.

In regards to Haymond’s sufficiency of the evidence argument, the Tenth Circuit found that the district court abused its discretion by relying on a clearly erroneous finding of fact that Haymond knowingly took some act related to the images that resulted in the images being on his phone in a manner consistent with knowing possession, as testimony supports only a finding that the images were accessible on Haymond’s phone, not that Haymond necessarily saved, downloaded, or otherwise placed them there. Nonetheless, the court found that the remaining evidence in the record was sufficient to support a finding that Haymond knowingly possessed the child pornography. The information the court relied on was (1) Haymond had nearly exclusive use and possession of his password-protected phone; (2) at some point, thirteen images of child pornography were accessible somewhere on Haymond’s phone; and (3) the sexual acts depicted in the images are consistent with the images forming the basis of Haymond’s original conviction. The court found the evidence supported a finding that it is more likely than not that Haymond downloaded the images and knowingly possessed child pornography, in violation of his release.

The Circuit then moved on to the constitutional question. Haymond’s original conviction, a class C felony, included a supervised release statute that requires a mandatory term of supervised release of five years to life under 18 U.S.C. § 3583(k), which may be revoked if a court later finds that the defendant has violated the conditions of that release. If not for the mandatory sentence required by § 3583(k), the sentence Haymond would have received following revocation of his release would have been significantly lower — two years at the most. The Circuit concluded that § 3583(k) violates the Fifth and Sixth Amendments because (1) it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range; and (2) it imposes heightened punishment on sex offenders, expressly based not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished. The Circuit found that § 3583(k) violates the Sixth Amendment because it punishes the defendant with reincarceration for conduct of which he or she has not been found guilty by a jury beyond a reasonable doubt, and it raises the possibility that a defendant would be charged and punished twice for the same conduct, in violation of the Fifth Amendment.

The Circuit noted that the court must refrain from invalidating more of the statute than is necessary. There are two sentences under § 3583(k) that the court found to violate the Constitution by increasing the term of imprisonment authorized by statute based on facts found by a judge, not by a jury beyond a reasonable doubt, and by tying the available punishment to subsequent conduct, rather than the original crime of conviction. The court concluded that without the unconstitutional provision, all violations of the conditions of supervised release would be governed by a different statute, which the court finds to be more appropriate. The sentences at issue under § 3583(k) are found to be unconstitutional and, therefore, unenforceable.

The Tenth Circuit Court of Appeals AFFIRMED the revocation of Haymond’s supervised release, VACATED his sentence following that revocation, and REMANDED for resentencing without consideration of § 3583(k)’s mandatory minimum sentence provision or its increased penalties for certain subsequent conduct.

Tenth Circuit: Attorney General’s Interpretation of the Immigration and Nationality Act’s Reinstatement Provision is Reasonable

The Tenth Circuit Court of Appeals issued its opinion in R-S-C v. Sessions on Wednesday, September 6, 2017.

This case presents a conflict between the provisions of the Immigration and Nationality Act (INA). The asylum section of the INA states that any alien, irrespective of such alien’s status, may apply for asylum. By contrast, the reinstatement provision mandates that a previously deported alien who illegally reenters the United States will have his prior removal order reinstated and is not eligible and may not apply for any relief. The Attorney General has determined that the latter subsection prevails and an illegal reentrant with a reinstated removal order is not eligible for asylum relief.

The Tenth Circuit Court of Appeals was asked to decide whether the Attorney General’s interpretation of the INA is a reasonable interpretation of the statutory scheme.

The background of this case involves R-S-C, a woman originally from Guatemala, who had come to the United States without inspection three times to escape threats and extortion against her in Guatemala. The Tenth Circuit found no merit in the argument that she did not illegally reenter the United States, as she expressly declined to contest the determination that she reentered the United States illegally, and there is no evidence in the record suggesting that she presented herself at the border in search of an immigration officer to file an asylum application, as she had previously claimed.

The Tenth Circuit evaluated whether the Attorney General’s interpretation was reasonable. The court determined this through a two-step framework. First, the Court examined whether Congress has directly spoken to the precise question at issue. The court concluded that the statutory command is ambiguous, as there is conflict between the asylum and reinstatement provisions. The Circuit found that Congress did not clearly resolve the question.

Second, because the statute is silent or ambiguous with respect to the specific issue, the question for the Circuit is whether the Attorney General’s answer is based on a permissible construction of the statute. If so, the court must accept the Attorney General’s construction of the statute. The Circuit rejected an argument that the Attorney General failed to perceive the ambiguity in the statute and felt compelled by Congress when interpreting the statute. The court found that the Attorney General’s silence on the statutory interplay does not mean the Attorney General missed the ambiguity. In rejecting this argument, the court considered whether the interpretation was reasonable, and determined it was, offering five reasons.

First, it is reasonable for the Attorney General to conclude that the reinstatement provision means what it says: that certain aliens are not eligible for “any relief.” It is also reasonable to conclude that the reference to “any relief” naturally means all forms of relief, including asylum.

Second, it is not unreasonable for the Attorney General to decide that the reinstatement provision is more specific than the asylum provision, as the Attorney General focused on the section of the INA that carves out a subset of persons for special treatment, rather than another section that establishes rules for a particular kind of relief that apply across the board.

Third, the Attorney General could reasonably conclude that the reinstatement provision operates with stronger force than the asylum section, as it speaks in mandatory terms, requiring the Attorney General to deny relief to aliens with reinstated removal orders.

Fourth, the asylum provision expressly authorizes the Attorney General to establish additional limitations and conditions, under which an alien shall be ineligible for asylum. By contrast, the Attorney General had no discretion to decide that some kinds of relief are immune from the eligibility bar after a removal order is reinstated. Thus, the Attorney General could have reasonably concluded that the reinstatement provision reflects a stronger congressional command than the asylum section.

Fifth, the Attorney General’s determination reasonably furthers the Illegal Immigration Reform and Immigrant Responsibility Act’s (IIRIRA) purpose in strengthening the reinstatement provision. Congress passed IIRIRA to replace a previous, more lenient, regime. IIRIRA foreclosed discretionary relief from the terms of the reinstated order. This suggests that Congress intended to fortify the effect of the reinstatement provision, and the Attorney General’s interpretation is faithful to that purpose.

In conclusion, the Circuit found that the INA does not clearly answer the question of whether an illegal reentrant with a reinstated removal order may apply for asylum. The Attorney General, however, has reasonably interpreted the ambiguous statutory scheme in concluding that such an alien is not eligible for asylum relief. The court, therefore, defers to the Attorney General’s interpretation.

The Tenth Circuit Court of Appeals DENIED the petition for review.

Tenth Circuit: Collection of Resource Data Considered Protected Speech Under the First Amendment

The Tenth Circuit Court of Appeals issued its opinion in Western Watersheds Project v. Michael on Thursday, September 7, 2017.

The State of Wyoming has enacted a pair of statutes imposing civil and criminal liability on individuals who enter open land for the purpose of collecting resource data without permission from the owner. “Resource data” was defined as data relating to land or land use. And the term “collect” was defined as requiring two elements: (1) taking a sample of material or a photograph, or otherwise preserving information in any form that is (2) submitted or intended to be submitted to any agency of the state or federal government. Information obtained in violation of these provisions could not be used in any proceeding other than an action under the statutes themselves. The statutes also required government agencies to expunge data collected in violation of their provisions and forbade the agencies from considering such data in determining any agency action.

The Tenth Circuit Court of Appeals concluded that the statutes regulate protected speech under the First Amendment and that they are not shielded from constitutional scrutiny merely because they touch upon access to private property. The statutes at issue target the creation of speech by imposing heightened penalties on those who collect resource data.

Plaintiffs in this case are advocacy organizations, arguing that the statutes violated Free Speech and Petition Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, and they were preempted by federal law. After the district court’s holding that Plaintiffs have stated claims for free speech, petition, and equal protection, Wyoming amended the two statutes, although the statutes continue to impose heightened criminal punishment and civil liability. The amendments penalize any individual who without authorization: (1) enters private land for the purpose of resource data; (2) enters private land and collects resource data; or (3) crosses private land to access adjacent or proximate land where he collects resource data. Under the current version of the statutes, there is no requirement that resource data be submitted to, or intended to be submitted, to a government agency. Instead, the term “collect” now means: (1) to take a sample of material or acquire, gather, photograph or otherwise preserve information in any form; and (2) to record a legal description or geographical coordinates of the location of the collection. The district court concluded that the revised version of the statutes did not implicate protected speech, Plaintiffs appealed to the Tenth Circuit.

The Tenth Circuit found that Wyoming already prohibits trespass, thus the effect of the challenged provisions is to increase a pre-existing penalty for trespassing if an individual collects resource data from public lands. To determine if such provisions are subject to scrutiny under the First Amendment, the question is not whether trespassing is protected conduct, but whether the act of collecting resource data on public lands qualifies as protected speech.

The Circuit concluded that the Plaintiffs’ collection of resource data constitutes the protected creation of speech, as the Supreme Court has explained that the creation and dissemination of information are speech within the meaning of the First Amendment; however, the court did not discuss the level of scrutiny to be applied, as the district court did not conduct an analysis on this matter and, as a general rule, the court will not consider an issue not passed upon below.

The Tenth Circuit Court of Appeals REVERSED the district court’s conclusion that the statutes are not entitled to First Amendment protection and REMANDED for further proceedings consistent with this opinion.

Tenth Circuit: Complaint Not Moot when Injury Can Be Redressed By Favorable Judicial Decision

The Tenth Circuit Court of Appeals issued its opinion in EEOC v. CollegeAmerica Denver, Inc. on Tuesday, September 5, 2017.

This case arises out of a dispute between CollegeAmerica Denver., Inc. (Company) and a former employee, Ms. Potts. The Company and Potts resolved a dispute by entering into a settlement agreement, but the Company came to believe that Potts breached the settlement agreement, leading the Company to sue Potts in state court. The suit sparked the interest of the Equal Employment Opportunity Commission (EEOC), which believed that the Company’s interpretation and enforcement of the settlement agreement was unlawful and interfered with the statutory rights of Potts. Based on this belief, the EEOC sued the Company in federal court.

The district court dismissed the EEOC’s unlawful-interference claim as moot, however, the EEOC is appealing the dismissal in light of the Company’s new theory against Potts: that she breached the settlement agreement by reporting adverse information to the EEOC without notifying the Company. The EEOC believes that by presenting this new theory, the Company was continuing to interfere with Potts’s and the EEOC’s statutory rights. The Tenth Circuit Court of Appeals reviewed this appeal and holds that the claim is not moot.

In deciding if a case is moot, the Tenth Circuit assesses whether a favorable judicial decision would have some effect in the real world. In other words, if a plaintiff no longer suffers an actual injury that can be redressed by a favorable judicial decision, the claim is moot.

A special rule applies when the defendant voluntarily stops the challenged conduct. When the conduct stops, the claim will be deemed moot only if two conditions exist: (1) it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. The court held that the first condition was not met, as the Company continued to stand by its new theory of how Potts had breached the settlement agreement. Therefore, mootness due to voluntary cessation is not applicable here.

The Tenth Circuit further disagreed with the Company’s argument that the case was moot because the outcome would not affect anything in the real world. The court found that if the EEOC prevailed on the merits and obtained an injunction, the Company could not present its new theory in the state-court suit against Potts. The inability to present this theory would constitute an effect in the real world, preventing dismissal based on mootness.

The Tenth Circuit further rejected the Company’s newly raised argument that the EEOC sought overly-broad, unauthorized injunctive and declaratory relief, finding that a federal court should not dismiss a meritorious constitutional claim because the complaint seeks one remedy rather than another plainly appropriate one.

The Tenth Circuit Court of Appeals REVERSED and REMANDED for further proceedings.

Tenth Circuit: Jurisdiction Over Crimes Committed in Indian Country is Properly Under the Federal Government

The Tenth Circuit of Appeals issued its opinion in Murphy v. Royal on Tuesday, August 8, 2017.

Petitioner-Appellant Murphy challenged the jurisdiction of the Oklahoma state court in which he was convicted of murder and sentenced to death. He contended he should have been tried in federal court because he is an Indian and the offense occurred in Indian country. The Tenth Circuit Court of Appeals agreed and remanded to the district court to issue a writ of habeas corpus vacating his conviction and sentence.

The Tenth Circuit addressed four issues in determining whether the state court had jurisdiction: (1) federal habeas corpus review; (2) Indian county jurisdiction generally; (3) Indian reservations; and (4) how a reservation can be disestablished or diminished.

The court found that Murphy’s crime occurred on the Indian Reservation, and therefore, the Oklahoma court lacked jurisdiction. The court reviewed the Antiterrorism and Effective Death Penalty Act (AEDPA). Section 2254(d) provides three ways to overcome AEDPA deference. The court focused on §2254(d)(1), which states that a state prisoner can qualify for habeas relief by showing a state court decision was “contrary to” federal law that was clearly established by the Supreme Court.

When a state court adjudicates a prisoner’s federal claim on the merits, review under § 2254(d)(1)’s contrary to clause proceeds in three steps: (1) whether there is clearly established federal law that applies to the claim; (2) whether the state court’s decision was contrary to that law; and (3) if the state court rendered a decision that was contrary to clearly established Supreme Court precedent by applying the wrong legal test, applying the correct law. The Circuit assumed that AEDPA supplied the standard of review, therefore the substantive law governing Indian country jurisdiction applies to these claims.

The Major Crimes Act is the jurisdictional statute at the heart of this case and applies to enumerated crimes committed by Indians in Indian country. The jurisdiction is exclusively federal, meaning the State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian Country.

Congress has provided that “Indian Country” includes all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation. Therefore, all lands within the boundaries of a reservation have Indian country status.

Only Congress can disestablish or diminish a reservation. As Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights, Congress also has the power to eliminate or reduce a reservation against a tribe’s wishes and without consent. Having recognized this power, the Supreme Court has developed a framework to determine whether Congress has exercised its power with respect to a given reservation.

First, there is a presumption against disestablishment and diminishment, and courts do not lightly infer that Congress has exercised this power. The Supreme Court has required that the congressional determination to terminate be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history.

Next is Congress’s pursuit of a policy called allotment and its relationship to reservation borders. Congress has historically adopted the view that the Indians tribes should abandon their nomadic lives on the communal reservations and settle into an agrarian economy on privately-owned parcels of land. This policy involved Congress dividing, or “allotting,” communal Indian lands into individualized parcels for private ownership by tribal members. Allotment on its own, however, does not disestablish or diminish a reservation, but may alter the boundaries of some reservations.

To distinguish congressional acts that changed a reservation’s borders from those that simply offered non-Indians the opportunity to purchase land within established reservation boundaries, the Supreme Court has developed a three-part framework:

  1. Courts must examine the text of the statute purportedly disestablishing or diminishing the reservation. No particular form of words, however, is necessary to diminish a reservation.
  2. Courts must consider events surrounding the passage of the statute. Courts have found that Congress altered the borders if evidence at step two unequivocally reveals a widely-held understanding that the affected reservation would shrink as a result of the proposed legislation.
  3. Courts must consider events that occurred after the passage of the statute. Evidence to be considered can include Congress’s own treatment of the affected areas, as well as the manner in which the Bureau of Indian Affairs and local judicial authorities dealt with unallotted open lands.

The Tenth Circuit applied the three-part framework described above and concluded that Congress did not disestablish the Reservation at issue in this case. The court found that the most important evidence, the statutory text, failed to reveal disestablishment at step one. Instead, the relevant statutes contain language affirmatively recognizing the Reservation’s borders. The evidence of contemporaneous understanding and later history, which was considered at steps two and three, is mixed and falls far short of unequivocally revealing a congressional intent to disestablish. Because the application of the framework shows Congress has not disestablished the Reservation, the crime in this case occurred within the Reservation’s boundaries. The State of Oklahoma accordingly lacked jurisdiction to prosecute Murphy.

After applying the three-part framework, the court concluded that Congress has not disestablished the Indian Reservation at issue in this case. The crime in this case occurred in Indian country, Murphy is an Indian, and the federal court has exclusive jurisdiction, not Oklahoma. Murphy’s state conviction and death sentence are thus invalid. The decision whether to prosecute Murphy in federal court rests with the United States and decisions about the borders of the Indian Reservation remain with Congress.

The Tenth Circuit Court of Appeals REVERSED the district court’s judgement and REMANDED with instructions to grant Murphy’s application for writ of habeas corpus.

Tenth Circuit: Social Workers Held to Have Qualified Immunity on Foster Child’s Special-Relationship Claims

The Tenth Circuit Court of Appeals issued its opinion in Dahn v. Amedei on Monday, August 14, 2017.

This case concerns an exception to the general rule that states are not liable for harm caused by private actors. This exception, called the special-relationship doctrine, makes a state or its agents liable under 42 U.S.C. § 1983 for failing to protect people from harm if they have deprived those people of liberty and made them completely dependent on the state for their basic needs. In this case, the Tenth Circuit Court of Appeals decided whether the geographical reach of the special-relationship doctrine crosses state lines.

A foster child, James Dahn, sued two Colorado social workers responsible for investigating reports that he was being abused. Dahn had been in Oklahoma’s custody until, in 2008, a Colorado adoption agency (Adoption Alliance) placed him for adoption with a foster father, Jeremiah Lovato, in Colorado. The foster father physically abused Dahn before and after adopting him. Many reports of suspicious abuse were reported to employees of the Moffat County Department of Social Services, Audrey Amedei and Amanda Cramer. Amedei and Cramer responded to the reports from Dahn’s school regarding Dahn’s suspicious bruising and significant, twenty-eight-pound weight loss, by interviewing Dahn and speaking with Lovato, via telephone. The reports of abuse were then determined to be unfounded. After further reports of suspicious bruising, Cramer chose not to speak with Dahn or Lovato, but instead called Vicki little, an independent contractor hired by Adoption Alliance to act as Dahn’s caseworker. Little visited the home, only speaking with Dahn alone for a few minutes, and shrugged off the concerns, determining Dahn was doing well. After two more visits where Little failed to speak to Dahn alone, she recommended that Lovato be allowed to adopt Dahn.

In 2010, the physical abuse from Lovato had escalated to the point where Dahn had to protect himself by running away. Dahn was taken to the hospital, where it was discovered that Lovato had broken Dahn’s arm months earlier, there was still ongoing abuse resulting in bruising, internal injuries, and bleeding, as well as open lesions. Lovato was tried and convicted of criminal child abuse in Colorado and sentenced to 119 ½ years-to-life in prison.

In 2013, Dahn sued Adoption Alliance, Little, Tem (Little’s supervisor), Amedei, and Cramer for his injuries. Dahn alleged (1) all defendants violated his Fourteenth Amendment substantive due process rights, under a special-relationship theory; (2) all defendants violated his Fourteenth Amendment substantive due process rights, under a state-created-danger theory; and (3) that defendants Adoption Alliance, Tem, and Amedei failed to properly train and supervise their employees in evaluating, monitoring, and investigating the prospective adoptive placement for abuse, resulting in violations of Dahn’s Fourteenth Amendment substantive-due-process rights. Dahn also brought state-law claims for negligence and outrageous conduct against all defendants. The issue decided by the Circuit was whether the district court erred in concluding that Amedei and Cramer had a special relationship with Dahn, and whether the law on this issue was clearly established.

Due process claims built on the special-relationship doctrine have four elements. First, the plaintiff must demonstrate the existence of a special relationship, meaning that the plaintiff completely depended on the state to satisfy basic human needs. Second, the plaintiff must show that the defendant knew that the plaintiff was in danger or failed to exercise professional judgment regarding that danger. Third, the plaintiff must show that the defendant’s conduct caused the plaintiff’s injuries. And, fourth, the defendant’s actions must shock the conscience. The question the Circuit decided was whether a foster child in the custody of one state can, after being placed by a private adoption agency with a foster father in a different state, establish a special custodial relationship with that second state when the second state takes on the duties to investigate evidence suggesting abuse.

The Tenth Circuit found that the law does not clearly extend constitutional liability under the special-relationship doctrine to employees of a state that did not deprive Dahn of his liberty or supply his basic needs, even though they were social workers in the county where he resided. Although the Circuit stated that Amedei and Cramer owed some duty to Dahn, as they investigated the suspected abuse but failed to take any action to remove Dahn from Lovato’s custody, the court found that Dahn had failed to show clearly established law that created a special-relationship between him, Amedei, and Cramer. This conclusion comes from a previous case which noted that the affirmative duty to protect arises not from the state’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf. Because the state had not deprived the child of his liberty, it did not have a custodial relationship with him that required the state to protect him from harm. The Circuit declined to address the other element of his claim, which is whether Amedei and Cramer acted in an unprofessional and conscience-shocking manner.

The Tenth Circuit Court of Appeals REVERSED the district court’s order denying Amedei and Cramer’s motion to dismiss Dahn’s special-relationship claim against them, and REMANDED for further proceedings.