March 3, 2015

Colorado Supreme Court: Announcement Sheet, 3/2/2015

On Monday, March 2, 2015, the Colorado Supreme Court issued one published opinion.

Figueroa v. Speers

The summary for this case is forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 3/2/2015

On Monday, March 2, 2015, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

United States v. James

Pippin v. Elbert County, Colorado

United States v. Scott

United States v. Vasquez

McCauley v. Board of County Commissioners for Bernalillo County

Hoeck v. Timme

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: United States v. Black Did Not Change Tenth Circuit Precedent

The Tenth Circuit Court of Appeals issued its opinion in United States v. Garcia-Ramirez on Wednesday, February 18, 2015.

Marcos Garcia-Ramirez entered into a plea agreement that included an appeal waiver, pleading guilty to one count of illegal reentry into the United States and receiving a 19-month sentence. Despite the appeal waiver, Garcia-Ramirez challenged his sentence as “unreasonable,” arguing simply that the court should exercise its discretion to bypass any decision on whether to enforce an appeal waiver pursuant to United States v. Black, 773 F.3d 1113, 1115 n.2 (10th Cir. 2014).

The Tenth Circuit noted that Garcia-Ramirez’s argument is based on a misreading of BlackBlack did not change the Tenth Circuit’s judicial jurisprudence but merely addressed a matter of judicial economy in deciding cases. United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004), continues to be binding precedent regarding enforceability of appeal waivers, and since Garcia-Ramirez failed to cite even a single Hahn factor, his appeal failed and the motion to enforce was granted.

Tenth Circuit: Bifurcation of Position Does Not Defeat Comparison for Employment Discrimination Claims

The Tenth Circuit Court of Appeals issued its opinion in Riser v. QEP Energy on Tuesday, January 27, 2015.

Kathy Riser, who was 50 years old in 2013, began working for Questar Exploration and Production Co. in 1997. In 2003, she became an Administrative Services Representative II, where she managed a fleet of 250 vehicles, performed facilities management duties, and managed construction projects in several states. She was the only Questar employee performing fleet management and facilities management duties. In 2010, QEP was spun off from Questar and became a separate entity. Based on the title of Ms. Riser’s job and not her actual duties, she was classified under the new employee classification system as a Grade 5 employee making $22.78 per hour or $47,382 annualized. Twice Ms. Riser requested that her title and salary be changed to reflect her actual duties, but her supervisor, Mr. Beach, would not respond.

In May 2011, QEP created a new position, “Fleet Administrator,” and had Ms. Riser craft a job description for the position based on her fleet management duties. The position was classified as a Grade 7 position with an annual salary of $62,000. QEP hired Matthew Chinn, a 39-year-old man, as Fleet Administrator in June 2011. Ms. Riser trained Mr. Chinn in fleet management duties until her termination in September 2011. QEP stated that Mr. Chinn took over Ms. Riser’s fleet management duties as well as other duties; however, Ms. Riser stated that she was in the process of implementing the new programs when Mr. Chinn was hired.

In August 2011, QEP began discussing creating a new “Facilities Manager” position and spoke with Jason Bryant, a 30-year-old man, about the position. QEP stated they were receiving complaints about Ms. Riser’s work overseeing a North Dakota construction project, but none of these complaints were conveyed to her during the time period and she continued to receive favorable reviews. QEP terminated Ms. Riser on September 8, 2011, stating her termination was due to her poor performance on the North Dakota construction project. She had not received any warning or been placed on suspension prior to her termination. QEP then hired Mr. Bryant as the facilities manager, classified as a Grade 7 employee and making $66,000 annually.

Ms. Riser brought suit against QEP in federal district court in Utah alleging: (1) pay discrimination under the EPA, Title VII, and ADEA; (2) failure to promote under Title VII and the ADEA; and (3) discriminatory discharge under Title VII and the ADEA. The district court granted summary judgment to QEP on all claims. Ms. Riser appealed the summary judgment on all but her failure to promote claim.

The Tenth Circuit found Ms. Riser’s claims to be precisely the sort of factual disputes that preclude summary judgment. On her EPA claims, the district court held that Ms. Riser had not established that her job was “substantially equal” to either Mr. Chinn’s or Mr. Bryant’s job, and also that even if she could establish a prima facie claim of discrimination, the pay scale was based on a gender-neutral system. The Tenth Circuit disagreed on both points, finding “the fact that a female employee performed additional duties beyond a male comparator does not defeat the employee’s prima facie case under the EPA.” The Tenth Circuit noted that QEP’s argument that Ms. Riser had no comparator was especially disingenuous, since her position was bifurcated to create the two jobs which were then given to younger men at a higher rate of pay. The Tenth Circuit similarly disposed of QEP’s argument that its pay scale was gender-neutral, as Ms. Riser’s pay was not based on her actual duties but rather those duties typically performed by people with her title. The Tenth Circuit likewise found merit to Ms. Riser’s Title VII and ADEA claims, since they had a lower burden of proof.

The Tenth Circuit affirmed the district court’s grant of summary judgment on Ms. Riser’s discriminatory discharge claims, finding these were not adequately briefed. In her opening argument, Ms. Riser did not argue that she satisfied her prima facie case, only that one existed. The Tenth Circuit concluded this argument was waived.

The district court’s summary judgment was affirmed in part, reversed in part, and remanded.

Tenth Circuit: Unpublished Opinions, 2/27/2015

On Friday, February 27, 2015, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Goudeau v. Dowling

United States v. Olivas-Lasos

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Announcement Sheet, 2/26/2015

On Thursday, February 26, 2015, the Colorado Court of Appeals issued eight published opinions and 24 unpublished opinions.

People v. Wilder

People v. Casillas

People v. Glover

People v. Thomas

People in Interest of E.G.

First National Bank of Durango v. Lyons

Ranch O, LLC v. Colorado Cattlemen’s Agricultural Land Trust

Monell v. Cherokee River, Inc.

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 2/26/2015

On Thursday, February 26, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Conkleton v. Raemisch

United States v. Johnson

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 2/25/2015

On Wednesday, February 25, 2015, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Chapman v. Wyoming Department of Corrections

United States v. Scott

United States v. Springer

Velasquez v. Faulk

Tadlock v. Marshall County HMA, LLC

Grayson v. McCollum

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

 

Tenth Circuit: Unpublished Opinion, 2/24/2015

On Tuesday, February 24, 2015, the Tenth Circuit Court of Appeals issued two published opinions and eight unpublished opinions.

United States v. Marquez

Longoria v. Falk

Allen v. Raemisch

United States v. Hines

United States v. Bell

United States v. Neal

Tatom v. Res-Care, Inc.

deWilliams v. Garcia

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Acquittal on Drug Trafficking Charges Does Not Preclude Immigration Removal

The Tenth Circuit Court of Appeals issued its opinion in Mena-Flores v. Holder on Friday, January 23, 2015.

Gustavo Mena-Flores entered the United States illegally in 1990. In 2006, the Department of Homeland Security initiated removal proceedings. Mr. Mena-Flores admitted he was “undocumented,” but sought permanent residency based on his marriage to a U.S. citizen. The Department contended Mr. Mena-Flores was not eligible for residency due to criminal activity, stemming from an arrest of Mr. Mena-Flores on charges of drug trafficking.

Mr. Mena-Flores’ brother, Santiago, ran a drug trafficking organization. During his arrest and indictment, four witnesses identified Mr. Mena-Flores as involved in Santiago’s organization. Although Mr. Mena-Flores was eventually acquitted of all charges, the Department argued he should be denied residency due to “reason to believe” he could have been involved in the drug trade. The immigration judge granted Mr. Mena-Flores’ request for adjustment in status, but the Department appealed, and the BIA remanded to the immigration judge to consider all evidence of drug trafficking activity. On remand, the immigration judge denied Mr. Mena-Flores’ petition, finding there was reasonable, substantial, and probative evidence creating a reason to believe he had been involved in drug trafficking.

Mr. Mena-Flores appealed to the BIA, which upheld the immigration judge’s decision. He appealed the BIA’s decision to the Tenth Circuit. He then hired new counsel, who urged the BIA to reopen the case to consider new evidence. Mr. Mena-Flores argued his trial counsel was ineffective by failing to present the evidence earlier. The BIA denied the motions and Mr. Mena-Flores appealed.

Before addressing the merits of Mr. Mena-Flores’ appeals, the Tenth Circuit addressed the Department’s arguments that it lacked jurisdiction to hear the appeal. The Department argued 8 U.S.C. § 1252 barred review of (1) orders against aliens who are removable because of participation in drug trafficking, (2) orders involving discretionary relief, and (3) unexhausted arguments.

The Tenth Circuit extensively evaluated the term “removable” and determined that, although there was an inference Mr. Mena-Flores was involved in drug trafficking, he was not “removable” based on the drug trafficking because he was being removed for lack of documentation. The Department next argued that since adjustment in status involves a form of discretionary relief, the Tenth Circuit lacked jurisdiction. The jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)(i) does not apply to the nondiscretionary aspects of relief. Finally, the Department argued Mr. Mena-Flores had not exhausted his administrative remedies, but the Tenth Circuit disagreed.

Addressing the merits of the appeal, the Tenth Circuit evaluated whether the BIA’s conclusion that Mr. Mena-Flores’ participation in drug trafficking precluded permanent residency was supported by substantial evidence. The Tenth Circuit looked at the inferences that Mr. Mena-Flores participated in drug trafficking and noted that he bore the burden of proof to show he was not involved in the drug trade. The Tenth Circuit would uphold the BIA’s determination if the evidence was “reasonable, substantial and probative.”

The Tenth Circuit found no error in the BIA’s determination. Witness statements, a special agent’s affidavit, and Mr. Mena-Flores’ testimony all influenced the immigration judge’s decision that Mr. Mena-Flores was not eligible for an adjustment in status due to his participation in drug trafficking activity. Because Mr. Mena-Flores bore the burden of proof, the Tenth Circuit found no error in the BIA’s decision. The evidence presented by Mr. Mena-Flores that tended to show non-involvement did not outweigh the inference created by the government’s evidence.

Mr. Mena-Flores also appealed the BIA’s denial of his motion to reopen. Although he argued that he had presented new evidence to the BIA, the Tenth Circuit disagreed. Mr. Mena-Flores’ counsel’s discretionary and tactical decisions to include or exclude evidence did not constitute ineffective assistance.

The Tenth Circuit found that Mr. Mena-Flores failed to meet his burden of proof, and affirmed the BIA’s decisions.

Tenth Circuit: Unpublished Opinions, 2/23/2015

On Monday, February 23, 2015, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Tiscareno v. Frasier

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 2/20/2015

On Friday, February 20, 2015, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Fox v. National Oilwell Varco

Flute v. United States

Winkles v. No Named Respondent

Pfiel v. Lampert

Calvert v. Denham

United States v. Washington

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.