September 20, 2014

Tenth Circuit: Doctors who Instituted Medical Hold to Prevent Child’s Discharge Not Entitled to Absolute Immunity

The Tenth Circuit Court of Appeals issued its opinion in Thomas v. Kaven on Tuesday, August 26, 2014.

M.T., the minor daughter of plaintiffs Legina and Todd Thomas, was placed in a mental health center after revealing suicidal ideation to a police officer who was interviewing her after her parents learned she may have been sexually assaulted. While in the hospital, M.T.’s doctors diagnosed her with a panoply of psychiatric disorders and wanted to start psychotropic medicine. Plaintiffs refused, concerned that the diagnoses were inaccurate and worried about serious side effects. The doctors reported Plaintiffs to the New Mexico Child, Youth, and Families Department (CYFD) for their resistance to M.T.’s treatment. After several weeks, Plaintiffs attempted to remove M.T. from the hospital, and the doctors instituted a medical hold to prevent Plaintiffs from removing M.T. The doctors and hospital initiated court proceedings five days later, but discharged M.T. after holding her for seven days because her insurance would no longer authorize treatment. The doctors again reported Plaintiffs to CYFD for medical neglect based on their decision not to medicate their child. M.T. returned to school and nothing came of the report.

Plaintiffs sued, alleging violations of 42 U.S.C. § 1983 based on violations of their Fourteenth Amendment right to direct their child’s medical care and right to familial association. The defendant doctors asserted absolute and qualified immunity and moved to dismiss. The district court granted the motion to dismiss, holding Defendants were entitled to qualified immunity. Plaintiffs appealed, arguing the district court erred in granting the motion to dismiss because their complaint alleged sufficient facts to sustain their claims of violations of their right to direct their child’s medical care and right to familial association.

The Tenth Circuit clarified that Defendants are not entitled to absolute immunity for seeking a judicial order regarding M.T.’s care. Defendants’ decision to prevent M.T.’s discharge was based on a medical hold that did not invoke the judicial process. The Tenth Circuit next evaluated whether dismissal was appropriate based on qualified immunity, which is usually applied at the summary judgment stage rather than in a motion to dismiss.

As to Plaintiffs’ claims that their right to direct their child’s medical care was violated, the Tenth Circuit disagreed, noting that Plaintiffs’ claim rested on Defendants’ report to CYFD, and since nothing ever came of the report, mere allegations were not enough to violate their parental rights. However, as to Plaintiffs’ claim of violation of the right to familial association, the Tenth Circuit determined Plaintiffs alleged sufficient facts to illustrate a violation. The Tenth Circuit could not tell from the record whether Defendants were entitled to qualified immunity and remanded for this determination.

The district court’s dismissal was affirmed in part, reversed in part, and remanded for further proceedings.

Tenth Circuit: Unpublished Opinions, 8/26/2014

On Tuesday, August 26, 2014, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

United States v. Reyes-Gonzales

Lewis v. Clark

United States v. Claycomb

United States v. Gruver

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

Comment Period Open for Proposed Changes to 10th Circuit Local Rules

The Tenth Circuit Court of Appeals has proposed changes to its local rules, effective January 1, 2015. From August 22 through October 20, the comment period for these proposed changes will be open to all interested parties. Comments are welcome on all rules, but practitioners are encouraged to carefully review the appendix requirement in counseled civil cases and criminal cases where there is retained counsel.

In addition to the changes to the 10th Circuit Local Rules, a change to Rule 6 of the Federal Rules of Appellate Procedure regarding bankruptcy appeals will take effect December 1, 2014. The change addresses three areas: (1) it has been updated to include the latest numeric revisions to the bankruptcy rules; (2) language has been changed to address electronic records; and (3) references have been added to discretionary bankruptcy appeals.

The changes to Fed. R. App. P. 6 and the 10th Circuit Local Rules are available in a clean version and a redline. Comments may be submitted to the clerk of the 10th Circuit via email at 10th_Circuit_Clerk@ca10.uscourts.gov. Interested parties are welcome to call the clerk’s office with questions at (303) 844-3157.

Tenth Circuit: Unpublished Opinions, 8/25/2014

On Monday, August 25, 2014, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

Tillotson v. May

Wilson v. Addison

Richardson v. Ploughe

Village of Logan v. United States Department of Interior

Adams v. Jones

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

Tenth Circuit: Attorney’s Failure to Submit Evidence of Residence Constituted Ineffective Representation in Removal Proceeding

The Tenth Circuit Court of Appeals issued its opinion in Martinez Molina v. Holder on Tuesday, August 19, 2014.

Alberto Martinez Molina and Cristina Ramirez Rivera, a married couple, are Mexican citizens subject to final orders of removal from the United States. The government began removal proceedings on October 16, 2008, and, in order to cancel the removal, the couple had to show continuous presence in the United States for the past ten years, beginning October 16, 2008. At a 2008 hearing, the couple’s first attorney submitted paystubs showing that Mr. Martinez had worked in the United States since 1998 and vaccination records showing that the couple’s minor child had been vaccinated throughout 1998. Following this hearing, the couple relocated and obtained the services of a second attorney, Mr. Senseney. At the second hearing, Senseney presented evidence of residence from 1999 to 2010, but did not present any evidence regarding 1998. The immigration judge denied relief, relying in part on the missing documentation but also relying on discrepancies in the couple’s testimony. Senseney appealed to the BIA but did not challenge any of the immigration judge’s rulings. The BIA dismissed the appeal.

After the dismissal, the couple hired a third attorney, who petitioned to reopen based on ineffective representation. The couple argued that they had received ineffective representation from Senseney based on his failure to submit evidence of residence during 1998. The BIA denied the motion, ruling that it appeared from the record that the evidence was substantially similar to that relied upon by the IJ. The couple appealed to the Tenth Circuit on two grounds: (1) the immigration judge failed to consider all of the evidence, including the evidence submitted at the 2008 hearing by their first attorney, and (2) ineffective representation.

The Tenth Circuit declined to address the couple’s first argument because it lacked jurisdiction to do so. The couple had not appealed that ruling to the BIA, and without exhaustion of lower court remedies, the Tenth Circuit had no jurisdiction to hear the issue. As to the second argument, the Tenth Circuit affirmed the BIA’s decision as to Ms. Ramirez but reversed as to Mr. Martinez.

The Tenth Circuit found that the BIA abused its discretion in denying Mr. Martinez’s petition to reopen because it ruled that the evidence regarding Mr. Martinez’s presence in 1997 and 1998 that was attached to his petition appeared the same or substantially similar to that considered by the immigration judge. However, the immigration judge did not consider evidence from 1998 because she referenced the absence of evidence proving residence in October 1998. The Tenth Circuit remanded to the BIA for further findings regarding the 1998 evidence.

As to Ms. Ramirez, the Tenth Circuit found no abuse of discretion. The vaccination records from 1998 that she submitted with her petition to reopen were already in the record, leading the BIA and Tenth Circuit to conclude the immigration judge considered this evidence.

The BIA’s denial was affirmed as to Ms. Ramirez and reversed and remanded as to Mr. Martinez.

Tenth Circuit: Unpublished Opinions, 8/22/2014

On Friday, August 22, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Mendiola v. Holder

Qiu v. Holder

United States v. Veater

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

Tenth Circuit: Jury Verdict and Attorney Fee Award Upheld in Employee Class Action

The Tenth Circuit Court of Appeals issued its opinion in Garcia v. Tyson Foods, Inc. on Tuesday, August 19, 2014.

Tyson employees were required to don and doff certain protective clothing before and after performing job duties. Tyson originally compensated only certain employees for 4 to 7 minutes of this “K-code” time, eventually changing its policy to compensate all employees for 20 to 22 minutes of K-code time. However, based Tyson’s own study, employees were uncompensated for approximately 29 minutes per shift based on the times they punched in and punched out versus actual compensation.

A group of Tyson employees brought class and collective actions against Tyson, seeking unpaid wages for pre- and post-shift activities. After a jury returned an award for the employees and an attorney fee award, Tyson unsuccessfully moved for judgment as a matter of law. Tyson appealed the district court’s judgment and denial of its motion for judgment as a matter of law. Tyson also argued the attorney fee award was excessive.

The Tenth Circuit addressed Tyson’s first argument – whether the evidence was sufficient to support the verdict – and found it was. The question for the jury was whether the K-code system had resulted in underpayment, and the Tenth Circuit found ample reason in the evidence to support the jury’s decision that it had, including Tyson’s own study. Tyson also challenged the proof of underpayment as to each class member. The Tenth Circuit rejected that challenge, because the proof was unnecessary, the jury could rely on representative evidence, and Tyson’s supporting cases are inapplicable.

The jury awarded less to plaintiffs than they requested. Tyson interpreted this to mean that the jury found some class members were appropriately compensated. The Tenth Circuit disagreed, finding the evidence supported a finding of undercompensation for all class members, and noting that Tyson’s argument was speculative.

Finally, the Tenth Circuit addressed the attorney fee award. The Fair Labor Standards Act provides a right to attorney fees to prevailing plaintiffs. The district court awarded over $3 million in attorney fees, despite the much lower awards to the plaintiffs. Because of ongoing class litigation in another county, the district court adopted a procedure whereby it reviewed the attorneys’ time records in camera, allowed disclosure of the hourly rate and number of hours worked, and allowed each side the chance to depose someone on the other side familiar with the billing process. Tyson objected to this process, instead requesting full discovery of billing records. The Tenth Circuit upheld the process and the award, finding good cause for the district court’s procedure and award.

The judgment was affirmed.

Tenth Circuit: Opinion Reissued Upon Remand from U.S. Supreme Court

The Tenth Circuit Court of Appeals issued its opinion in National Credit Union Administration Board v. Nomura Home Equity Loan, Inc. on Tuesday, August 19, 2014.

The U.S. Supreme Court granted certiorari to review the Tenth Circuit’s August 27, 2013 decision and remanded with instructions to reconsider in light of the Supreme Court’s decision in CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014). The Tenth Circuit, after receiving additional briefs and reviewing CTS Corp., reinstated its original opinion. Click here for the original summary.

Tenth Circuit: Unpublished Opinions, 8/21/2014

On Thursday, August 21, 2014, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Trotter

United States v. Velasco

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

Tenth Circuit: Subsurface Mineral Rights Lessee May Cross Surface Owner’s Property to Access Leasehold

The Tenth Circuit Court of Appeals issued its opinion in Entek GRB, LLC v. Stull Ranches, LLC on Thursday, August 14, 2014.

Stull Ranches is the surface owner of a tract of property in rural Colorado. Entek GRB leases subsurface mineral rights, and, in order to access those subsurface rights, sought to access them by installing oil wells on the surface of Stull’s property. Entek’s subsurface oil leasehold rights extend onto neighboring property owned by the Bureau of Land Management, and Entek sought to traverse Stull’s property in order to reach the subsurface minerals on BLM’s property, since the only way to access the BLM property was on the existing road crossing Stull’s property. Stull objected, arguing that Entek’s drilling would disrupt Stull’s grouse hunting business. The district court granted summary judgment to Entek regarding access to its wells on Stull’s property, but denied Entek’s request to cross Stull’s property in order to access the BLM land. Entek appealed to the Tenth Circuit.

The Tenth Circuit explored the history of the government’s land grants, specifically as to separate grants of surface ownership and rights to subsurface minerals and water. Stull is the successor in interest of land acquired under the Stock-Raising Homestead Act of 1916, which expressly reserved to the government all mineral rights, along with the right to enter and use as much of the surface as is “reasonably incident” to the exploration and removal of mineral deposits, and the right to enact future laws and regulations regarding “disposal” of the mineral estate. The subsequently-enacted Mineral Leasing Act granted the Secretary of the Interior the right to amend mineral leases, which it did for the lease encompassing the subsurface mineral rights on Stull’s property and the adjacent BLM property in the Focus Ranch Unit Agreement. This agreement deems all drilling and producing operations on one part of a leasehold interest will be accepted and performed on all leasehold interests. Because Entek is allowed to drill through Stull’s surface estate to access its subsurface mineral lease, it is deemed access to all leasehold interests, including the leasehold interest on BLM’s surface property. Entek has the right to use the existing road that traverses Stull’s property in order to achieve efficient access to its subsurface leasehold.

Stull also argued that, in a case involving the prior holder of Entek’s current rights, the district court ruled that the lessee of the mineral rights was not permitted to access a different property in order to reach a well on an adjacent tract. However, that case was not appealed because the prior lessee entered into an agreement with Stull allowing it to traverse Stull’s property. The Tenth Circuit ruled that preclusion was precluded by this prior agreement.

The district court’s grant of summary judgment to Stull was vacated and the case was remanded for further proceedings consistent with the Tenth Circuit opinion.

Tenth Circuit: Unpublished Opinions, 8/20/2014

On Wednesday, August 20, 2014, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Stallings v. Franco

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

Tenth Circuit: Newly Discovered Evidence of Actual Innocence Tolls Time Period for Filing Habeas Claims

The Tenth Circuit Court of Appeals issued its opinion in Doe v. Jones on Tuesday, August 12, 2014.

John Doe, a federal prisoner, was convicted of first-degree murder in Oklahoma and sentenced to life without parole. He was separately convicted in federal court of bank robbery, which took place in connection with the Oklahoma murder. His direct appeal to the murder conviction was unsuccessful and he did not appeal further or file a habeas petition in federal court. While serving the federal life sentence in Texas, he was convicted of murdering a fellow inmate and sentenced to death.

Following the imposition of the death sentence, Doe contends that new evidence came to light that established his actual innocence for the Oklahoma murder and federal robbery. He filed a petition for post-conviction relief in state court and the instant § 2254 petition in federal court two days before the expiration of the one-year statute of limitations for habeas petitions. He also filed a motion to stay the federal § 2254 petition pending outcome of the state court case. He raised the actual innocence claim both as a new constitutional claim and a “gateway” to introduce time-barred constitutional claims such as ineffective assistance of counsel and suppression of exculpatory evidence. The district court judge, adopting the recommendations of a magistrate, dismissed the § 2254 petition without prejudice. It also denied his motion to alter and amend judgment and his request for a certificate of appealability.

The Tenth Circuit reviewed prisoners’ requirements to exhaust all state remedies in light of the Supreme Court’s ruling in Rhines v. Weber, 544 U.S. 269 (2005). The Tenth Circuit discussed that before Rhines and before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, there was no time limit for filing federal habeas petitions and there was no need for prisoners to raise all claims in state court prior to filing in federal court. However, Rhines and the AEDPA limited these filings and required habeas petitions to be filed within one year of the date the judgment became final. Circuit case law suggested that petitioners nearing the end of the one-year limitations period should file their state court claims and also file § 2254 petitions in the federal district court, asking the district court to stay the proceeding until resolution of the state court claims in order to preserve their federal remedies. Based on a 2010 Tenth Circuit opinion, the magistrate in this case determined that the limitations period would be tolled by the actual innocence claim so a stay was not warranted. During the pendency of this appeal, the Supreme Court decided that a credible showing of actual innocence provides an outright equitable exception to AEDPA’s statute of limitations. Therefore, the petitioner in this case does not have a legitimate concern that his federal claims will be time-barred.

The district court’s dismissal was affirmed.