February 12, 2016

Tenth Circuit: Unpublished Opinions, 1/20/2016

On Wednesday, January 20, 2016, the Tenth Circuit Court of Appeals issued three published opinions and one unpublished opinion.

L’Ggrke v. Asset Plus Corp.

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 1/19/2016

On Tuesday, January 19, 2016, the Tenth Circuit Court of Appeals issued two published opinions and one unpublished opinion.

Chase v. Lind

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Severance Payments to Terminated President Not Avoidable Under § 548

The Tenth Circuit Court of Appeals issued its opinion in In re Adam Aircraft Industries, Inc.: Weinman v. Walker on Thursday, October 15, 2015.

Joseph Walker was the president and a board member for Adam Aircraft Industries (AAI). On February 1, 2007, George “Rick” Adam, AAI’s board chair, informed Walker that the board had decided to replace him as president and requested his resignation in lieu of terminating his employment. AAI was engaged in debt financing negotiations with Morgan Stanley for an $80 million loan and did not want to imperil its negotiations with bad publicity from Walker’s termination. Walker returned to his office late that night to collect his belongings, and sent an email to the board chair and another board member outlining requests for his resignation. His replacement as president started working for AAI on February 2. Over the next two weeks, AAI and Walker negotiated the terms of his separation and eventually entered into Separation Agreement I and a Memorandum of Understanding (MOU) on February 13, 2007. On March 20, 2007, AAI refunded Walker’s security deposit for an airplane, plus interest, and on May 18, 2007, the parties entered into Separation Agreement II. AAI continued to make twice-monthly severance payments to Walker between February 2007 and February 2008.

On February 15, 2008, AAI filed a voluntary petition for bankruptcy, and the trustee, Weinman, sold substantially all of AAI’s assets for a gross purchase price of $10 million in April 2008. Walker filed a proof of claim in AAI’s bankruptcy case for $134,931.00, including $10,950.00 as a priority-employee claim based on wages, salaries, and commissions under the MOU and Separation Agreements. AAI filed a complaint in January 2010, seeking to avoid and recover transfers to Walker under the MOU and Separation Agreements. The bankruptcy court held a trial in February 2013 and entered its order in June 2013, ruling that Walker ceased to be a statutory insider on February 1, 2007, and did not meet criteria for a non-statutory insider; the transfers to Walker did not occur under an employment contract; and Walker gave reasonably equivalent value for the transfers. AAI appealed to the BAP, which affirmed the bankruptcy court, and again appealed to the Tenth Circuit.

AAI argued to the Tenth Circuit that its transfers to Walker were avoidable under 11 U.S.C. § 548(a)(1). The Circuit iterated five prongs that AAI must meet to prove its transfers were avoidable: (1) the transfers must have occurred within two years of the bankruptcy filing; (2) Walker must have been an insider either when the transfers were negotiated or when the money was paid; (3) the transfers must have been made under an employment contract; (4) AAI must have received less than equivalent value for the transfers; and (5) the transfers must have been made outside the ordinary course of business. The Tenth Circuit noted that the burden was on AAI to prove all five prongs, and failure to prove even one prong would mean AAI could not prevail. Since the parties did not dispute the first factor, the Tenth Circuit began its analysis by looking at whether Walker was an insider when the transfers were negotiated or the money was paid.

The bankruptcy court concluded that Walker’s insider status ceased as of February 1, 2007, and the Tenth Circuit agreed. AAI argued that because the MOU listed March 1, 2007, as Walker’s termination date, the first Separation Agreement and MOU were entered into while Walker retained insider status. The bankruptcy court found, however, that Walker did no further work for AAI after that date, he did not return to the AAI premises, and his replacement started on February 2. The Tenth Circuit found no clear error in the bankruptcy court’s determinations. The bankruptcy court also held Walker could not qualify as a non-statutory insider, which AAI argued was applicable because Walker proposed the initial terms of his separation, which AAI ultimately accepted. The Tenth Circuit found this was insufficient to satisfy AAI’s burden. The Tenth Circuit similarly rejected AAI’s contention that refusing to classify Walker as an insider would frustrate the purpose of BAPCPA, noting it could not imagine Congress intended the BAPCPA to allow businesses to negotiate separation terms with an employee, which the employee fulfilled, then avoid any reciprocal obligations to the employee.

AAI next argued its payments to Walker were recoverable under the “non-insider” portions of § 548. The statute allows avoidance of transfers if AAI received less than equivalent value at the date of each transfer and AAI was insolvent. The Tenth Circuit again noted that failure of one prong would negate the possibility of avoidance. The bankruptcy court had found that the antecedent debt created by the MOU and Separation Agreements for the severance package constituted “reasonably equivalent value” because Walker had agreed to resign instead of facing termination in order not to imperil the debt financing with Morgan Stanley and had not retained employment with competing companies. As for the airplane deposit and stock purchase refund, the Tenth Circuit found no error in the bankruptcy court’s determination that these transactions were not avoidable.

The Tenth Circuit affirmed the bankruptcy court.

Tenth Circuit: Denial of Qualified Immunity Appropriate Where Victim Not Threatening Officers

The Tenth Circuit Court of Appeals issued its opinion in Tenorio v. Pitzer on Tuesday, October 6, 2015.

Hilda Valdez called 911 to report that her sister-in-law’s husband, Russell Tenorio, had a knife to his throat and was intoxicated. Officers Moore, Hernandez, and Liccione of the Albuquerque Police Department were dispatched to the call, and Officer Pitzer also responded. The 911 operator relayed to the officers that Tenorio had a knife to his own throat but no one was injured, he had broken some windows, he had been violent in the past (this was incorrect but was relayed to the officers), was waving the knife around, takes medication for seizures, and several other people were around. When the officers arrived, they met Ms. Valdez on the front lawn. Ms. Valdez was panicked and frightened. The officers entered the house without announcing themselves. Officer Pitzer was in front with his handgun drawn, and announced that he was “going lethal.” Officer Moore was behind Pitzer with his Taser, Officer Liccione was third and also had his gun drawn, and Officer Hernandez had a shotgun with bean bags but stayed behind to talk to Ms. Valdez.

When the officers entered the house, they asked Mrs. Tenorio to step out of the way and hustled her outside. On her way out, she said, “Russell, put that down.” She was followed by Tenorio, who had a blank stare and was holding a kitchen knife loosely by his side. Officer Pitzer shouted at Tenorio to drop the weapon, and two or three seconds later Pitzer shot Tenorio, Moore tased him, and he fell to the ground. Tenorio was hospitalized for months for the life-threatening injuries he suffered that night, and later brought 42 U.S.C. § 1983 excessive force claims against Pitzer, other officers, and the City of Albuquerque. Pitzer moved for summary judgment based on qualified immunity, but the district court denied his motion, concluding the evidence could show Pitzer violated clearly established law under two theories: (1) Pitzer lacked probable cause to believe that Tenorio presented a serious risk of harm to himself or others when he shot Tenorio, and (2) Pitzer and his fellow officers recklessly created the situation that resulted in use of deadly force. Pitzer appealed the denial of his summary judgment motion.

The Tenth Circuit found interlocutory jurisdiction by accepting the facts as agreed to by the parties and using the court’s construction of the evidence in the light most favorable to Tenorio. The Tenth Circuit evaluated Pitzer’s claim for qualified immunity based on a standard of objective reasonableness as judged from the perspective of a reasonable officer on the scene. The district court weighed four factors in denying Pitzer’s motion, including (1) whether the officers ordered the victim to drop his weapon, (2) whether the victim made hostile motions with the weapon toward the officers, (3) the distance between the officers and the victim, and (4) the manifest intentions of the victim. The court concluded the first factor was neutral because although the officers ordered Tenorio to drop his knife, they did not give him sufficient time to comply, the second factor weighed against probable cause because Tenorio was holding a small knife loosely by his thigh, the third factor weighed against probable cause because Tenorio was not within striking distance when he was shot, and the fourth factor weighed against probable cause because the only person Tenorio was said to have threatened was himself. The Tenth Circuit accepted the district court’s findings concerning the evidence and agreed that it sufficed to bar summary judgment against Tenorio’s claims.

The Tenth Circuit evaluated circuit precedent and determined that its prior holdings on probable cause supported the district court’s denial. Because Tenorio was not charging the officers, was not holding the weapon in a threatening gesture, was not speaking or moving aggressively, and was not within striking distance of the officers, it was unreasonable under circuit precedent for Officer Pitzer to use lethal force.

The Tenth Circuit affirmed the district court’s denial of qualified immunity, noting that a contrary judgment may be permissible after a jury trial. Judge Phillips wrote a scathing dissent. He would have granted qualified immunity based on the fact that Tenorio had a weapon and was in the same small room as the officers.

Tenth Circuit: Independent Review Process Breaks Causal Chain Between Discrimination Allegations and Termination

The Tenth Circuit Court of Appeals issued its opinion in Thomas v. Berry Plastics Corp. on Friday, September 25, 2015.

Karry Thomas, who is African-American, worked for Berry Plastics Corp. in its Kansas facility from 2003 to 2010. Over the course of his employment, eight different Berry supervisors initiated at least 13 different disciplinary actions against him, ranging in severity from verbal coaching and written warning to suspensions and final warnings. In May 2009, Jason Morton became Thomas’s group leader. Morton had limited disciplinary authority and was unable to independently issue high levels of discipline such as suspensions or final warnings.

After conferring with his supervisor, Morton suspended Thomas in July 2010 for a print quality issue. Because of this suspension and a prior suspension issued by a different supervisor two months earlier, Watson, the printing manager who oversaw the entire Kansas operation, issued a Last Chance Agreement to Thomas, providing that he would be subject to disciplinary action for future attendance or rules violations. Morton was not involved in the decision to place Thomas on a Last Chance Agreement. A few weeks later, Morton gave Thomas a Final Warning, acting pursuant to direction from Watson and Human Resources, based on failure to pack product correctly on July 27. Thomas alleged that he did not fail to pack the product properly and stated he felt he was “getting discrimination because of race.” Morton investigated and determined the packing problem was not Thomas’s fault. He rescinded the Final Warning.

Later, Morton submitted a report to Watson that faulted Thomas for a print quality issue on September 10. Watson reviewed the incident and did not consult Morton before deciding to terminate Thomas. Before Human Resources could approve Watson’s termination decision, Morton issued a written warning to Thomas based on a different incident where he failed to complete paperwork. Shortly thereafter, Berry officially terminated Thomas’s employment.

Thomas appealed his termination through Berry’s Termination Review Process two days later, and two independent Berry managers affirmed Watson’s termination decision. Thomas thereafter filed suit for wrongful discharge, alleging he was terminated in retaliation for opposing race discrimination in violation of Title VII and 42 U.S.C. § 1981. Thomas invoked the cat’s paw theory of recovery, arguing it was Morton who possessed the retaliatory animus that infected Watson’s termination decision because of Thomas’s opposition to racial discrimination that he expressed at the Final Warning meeting with Morton. The district court ultimately granted summary judgment to Berry, and Thomas appealed.

On appeal, Thomas argued the district court erroneously granted summary judgment to Berry because he presented sufficient circumstantial evidence from which a reasonable jury could conclude the stated reason for his termination was pretextual. The Tenth Circuit disagreed, finding the district court correctly granted summary judgment for two reasons. The Tenth Circuit first applied the McDonnell Douglas framework to determine whether Thomas’s termination was pretextual and found Thomas failed to meet his burden to show pretext.

Thomas argued that a reasonable jury could infer Morton possessed retaliatory animus because of two pieces of circumstantial evidence. First, Thomas argued that Morton’s report regarding the September 10 print quality issue was dishonest because it failed to include that Thomas had properly inspected the equipment before going on break. However, Thomas did not argue that Berry would not hold a print technician responsible for errors that occurred while the print technician was on break, and the Tenth Circuit noted that record evidence suggested the opposite. The Tenth Circuit found that Morton’s omission on the September 10 report was inconsequential and did not reflect retaliatory animus. Next, Thomas argued that Morton’s report on the September 10 issue was inconsistent with his rescission of the July 27 incident. The Tenth Circuit again disagreed, noting that there is no inference of retaliatory animus in including more information in a rescission than in the original report, and also finding that both the rescission and the September 10 incident occurred after Thomas expressed concern about race discrimination, negating an inference that the timing of the September 10 report supported retaliation.

Although the Tenth Circuit found it could affirm on the lack of evidence alone, it also addressed causation, finding Thomas could not show that Morton’s retaliatory animus was a “but-for” cause of termination. Because Thomas’s termination was independently affirmed by Berry’s Termination Review Panel, the causal chain between Morton’s alleged animus and the retaliatory action was broken. The Tenth Circuit held that, even if it assumed retaliatory animus, Thomas could not show that the animus was a “but-for” cause of his termination.

The district court’s grant of summary judgment was affirmed.

Tenth Circuit: Unpublished Opinions, 1/15/2016

On Friday, January 15, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Ngiendo v. Sedgwick Claims Management Services

United States v. Deloera-Escalera

United States v. McGuire

Nails v. Slusher

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

Tenth Circuit: Garcetti and Lane Require Showing of Whether Speech Within Employee’s Official Duties

The Tenth Circuit Court of Appeals issued its opinion in Holub v. Gdowski on Thursday, September 24, 2015.

Gina Holub was employed as an internal auditor for the Adams 12 school district beginning in 2007, and she reported to the district’s Chief Financial Officer. In late 2011, the district hired Shelley Becker as the new CFO, who implemented measures to ensure the accuracy of the district’s budget. At Becker’s request, district employee Tracy Cantrell analyzed the district’s salary expenses. Cantrell determined that the budget included $12 million more in salary funding than required to pay all the full-time employees. Cantrell reported her findings to Becker, and when Becker failed to address the issue, she reported them to Holub. Holub agreed with Cantrell that the salary budget was inflated, but found that it included $17 million more than necessary, thereby affecting the budget’s required 10% reserves. Holub conveyed her concerns to district superintendent Chris Gdowski, who advised her to speak to Becker about the concerns. Holub expressed to Gdowski that speaking to Becker would create a conflict of interest, and Gdowski advised her to research to whom she should be reporting. Holub ultimately concluded she was required to share her concerns with senior management, including Becker, and the school board.

District employees held four separate meetings in July and August 2012 to address Holub’s concerns. Becker explained Holub had erred in her analysis by incorrectly assuming the salary budget only included base salaries of full-time employees. Rather, Becker informed Holub that the salary budget also included many other items, including overtime pay and coaching stipends. This information satisfied Gdowski that Holub’s concerns were unfounded. However, Holub was not satisfied, and a few days later she approached the board president, Mark Clark, and shared her concerns with him. Two days later, Gdowski introduced Holub to the board and indicated that, as internal auditor, she could be a resource for the board. Holub requested that Gdowski allow her to present her findings to the board, but Gdowski replied that he believed her concerns were unfounded and would not recommend that the board hear her concerns in a public meeting. Holub prepared and delivered to Gdowski a memorandum citing state law and accounting standards in which she asserted the district had acted illegally and unethically in concealing excess budget reserves. The district hired an independent expert, Vody Herrmann, to review the budget.

Before Herrmann completed her review, Holub again insisted to Gdowski that even if Herrmann disagreed with her, Holub had a responsibility to present her conclusions to the board. The district’s general counsel responded, advising Holub that the board was aware of her concerns, her responsibility was to raise concerns to management, and the board would determine whether further action was necessary after receiving the independent review. About three weeks later, Herrmann presented her findings to Holub, Gdowski, and Becker. Herrmann explicitly concluded Holub’s concerns were unfounded. Holub then met with two board members, Schaefer and Winsley, at Schaefer’s home office. Both board members then met with Gdowski to discuss Holub’s concerns and left the meeting satisfied that they were unfounded.

In early October 2012, Gdowski, Becker, and the district’s Chief Human Resources Officer met to discuss Holub’s unwillingness and apparent inability to move past her budget concerns. They decided to terminate Holub’s employment, and Becker and the CHRO met with Holub on October 19, 2012, to inform her of their decision, telling her that her inability to move past her discredited budget concerns meant she could no longer be an unbiased and productive employee. In February 2013, a local news station aired a story featuring an interview with Holub in which she accused the district of inflating its salary budget. Before the story aired, Gdowski posted a statement on the district’s website in which he informed the district’s staff, parents, and community that Holub’s concerns were unfounded, and also questioning Holub’s credibility.

Holub eventually filed this action against the school district, Gdowski, and Becker, alleging a 42 U.S.C. § 1983 claim against all defendants for terminating her employment in retaliation for protected First Amendment speech, a breach of contract claim against the district, intentional interference with contract claims against Gdowski and Becker, and a defamation claim against Gdowski. The district court granted summary judgment to defendants on all Holub’s claims, and she appealed.

The Tenth Circuit, applying de novo review, first analyzed Holub’s First Amendment claim using the Garcetti/Pickering test. The Tenth Circuit found Holub’s claims failed at the first prong of the test because she spoke pursuant to her official duties. Holub argued that the Supreme Court’s recent opinion in Lane v. Franks, 134 S. Ct. 2369 (2014) changed the Garcetti test, and that the district court should have focused on whether the speech was “ordinary” in the sense that it was customary or regular. The Tenth Circuit corrected Holub that Lane directed it to focus on whether the speech was within the employee’s usual duties, not whether the speech was frequent or customary. Even if it had accepted Holub’s argument, though, the Tenth Circuit found she still failed the first prong of the Garcetti test because she was acting in her official capacity when she spoke to the board members.

Next, the Tenth Circuit evaluated whether the district court correctly granted summary judgment on Holub’s state law breach of contract claims. Holub argued that the district’s stated reason for her termination, that she was unable to perform her official duties because she could not move past her unfounded budget concerns, was a ruse created by Gdowski and Becker to silence her complaints about the budget. Holub first argued the district lacked cause to terminate her contract. The district contended its reasons for terminating Holub were uncontroverted and provided more than sufficient cause for her termination. Holub failed to point to whether the district had cause to terminate her, instead arguing again that her budget calculations were correct. The district court noted that Holub supplied no indication that the district feigned engagement with her budget concerns just to fabricate an excuse to terminate her, and that indeed the district took several measures to address her concerns before considering termination. The Tenth Circuit found Holub failed to show any indicia of her alleged conspiracy theory.

Finally, the Tenth Circuit addressed the district court’s grant of summary judgment to Gdowski and Becker on Holub’s intentional interference with contract and wrongful discharge claims and to Gdowski on Holub’s defamation claim. The district court granted immunity to defendants, basing its decision on its conclusion that there was no evidence either Gdowski or Becker had acted willfully and wantonly in terminating Holub. The Tenth Circuit concluded that, even in the light most favorable to Holub, there was no evidence showing that Gdowski’s or Becker’s actions were unreasonable or reckless.

The Tenth Circuit affirmed the district court’s grant of summary judgment to defendants on all counts.

Tenth Circuit: Unpublished Opinions, 1/14/2016

On Thursday, January 14, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Muse

United States v. Harris

Griffin v. Scnurr

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

Tenth Circuit: Juror Questionnaire, Taken in Isolation, Not Enough to Show Impermissible Bias

The Tenth Circuit Court of Appeals issued its opinion in Eizember v. Trammell on Tuesday, September 10, 2015.

When he was released from the Tulsa jail, Scott Eizember went to his ex-girlfriend’s house to exact revenge since she had alerted authorities about his violation of a protective order. He broke into a house across the street and found a shotgun. When the Cantrells, an elderly couple who lived in the house, returned home, Eizember engaged in an altercation with Mr. Cantrell where he tried to wrestle the gun from Eizember. A shot was fired during the altercation that killed Mrs. Cantrell. Eizember wrestled the gun away from Mr. Cantrell and beat him with the gun until he lost consciousness, and eventually died. Next, he headed across the street and shot Tyler Montgomery, his ex-girlfriend’s son, and beat Mr. Montgomery’s grandmother. Mr. Montgomery ran to his pickup truck to drive away but Eizember jumped into the bed of the truck. Mr. Montgomery eventually crashed the truck and ran away for help. Eizember ran the other direction and hitched a ride, but eventually shot at the other driver too.

For the next 11 days, he hid in the woods, emerging only to steal clothes and a pistol from a nearby house. He soon stole a car from outside a church and made his way out of town. When the car ran out of gas, he continued hitchhiking, and was offered a ride by Dr. Sam Peebles and his wife, whom he ordered at gunpoint to drive him to Texas. After hours in the car, Dr. Peebles was able to shoot Eizember with his own gun. Eizember wrestled the revolver away from Dr. Peebles and bludgeoned him with it, also hitting Mrs. Peebles in the head when the revolver wouldn’t fire at her. At a nearby convenience store, a clerk saw Eizember was shot and called the police. Eizember was arrested and taken to the hospital, then jail.

Eizember was eventually convicted of first-degree murder for Mr. Cantrell’s death, second-degree felony murder for Mrs. Cantrell’s death, assault and battery with a dangerous weapon for beating Montgomery’s grandmother, shooting with intent to kill for Mr. Montgomery, and first-degree burglary for breaking into the Cantrells’ home. He unsuccessfully appealed to the Oklahoma Court of Criminal Appeals (OCCA) and the U.S. Supreme Court denied certiorari. The OCCA also denied his petition for post-conviction relief, as did a federal district court, but the district court granted Eizember a Certificate of Appealability on several issues.

On appeal, Eizember argued that two jurors, D.B. and J.S., should have been excluded because they were impermissibly biased in favor of the death penalty. The Tenth Circuit, noting that both the OCCA and the federal district court rejected this claim, disagreed with Eizember. The Tenth Circuit applied a Witt standard and agreed with the OCCA that, when considered in context, D.B.’s answers did not show impermissible bias. Although the questionnaire answers pointed out by Eizember tended to show bias toward the death penalty, D.B.’s answers during voir dire showed that she could fairly consider all sentencing options. The Tenth Circuit held that the trial court did not clearly err by retaining D.B. as a juror. As for J.S., his answers tended to show less bias than D.B.’s answers, so the Tenth Circuit found no error in the trial court’s refusal to dismiss him. The dissent suggested that the OCCA did not apply the Witt standard at all in rejecting Eizember’s arguments against retaining D.B. and J.S. on the jury, therefore relying on an incorrect legal standard and necessarily mandating reversal, but the majority did not agree.

Eizember next argued that the jury was confused about the meaning of life with the possibility of parole as a sentencing option due to a prospective juror’s erroneous comment during voir dire. The Tenth Circuit disagreed, finding that the parties agreed the jurors were properly instructed on the meaning of life with the possibility of parole as a sentencing option. Eizember argued that his sentences should be vacated due to the jury’s confusion, but the Tenth Circuit again disagreed, finding that even if there had been error vacating the sentences was not the proper remedy.

Next, Eizember argued that the jury was improperly instructed on the elements of second-degree “depraved mind” murder, and the prosecution agreed. Eizember contended that because of the improper instruction, he was deprived of his federal due process rights to have the jury instructed on a non-capital alternative offense. The Tenth Circuit again disagreed, finding that although the instruction incorrectly advised the jury of the non-capital offense of “depraved mind” murder, the jury was properly instructed on felony murder, which is a non-capital offense. Eizember argued that the jury would not have been able to convict him of felony murder, but the Tenth Circuit rejected this argument as well, noting that Eizember requested the felony murder instruction. Eizember next argued that his attorney’s failure to object to the incorrect “depraved mind” instruction constituted ineffective assistance of counsel. The OCCA found that the incorrect instruction had no impact on Eizember’s rights, because it is unavailable under state law when a jury finds a killing intentional beyond a reasonable doubt, as it did in Eizember’s case.

The judgment of the district court was affirmed. Chief Judge Briscoe wrote a detailed dissent regarding D.B.’s bias in favor of the death penalty.

Tenth Circuit: Unpublished Opinions, 1/13/2016

On Wednesday, January 13, 2016, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

United States v. Bishop

Jordanoff v. Lester

United States v. Rubio-Ayala

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

Tenth Circuit: Unpublished Opinions, 1/12/2016

On Tuesday, January 12, 2016, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

He v. Lynch

Miller v. State of Utah

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

Tenth Circuit: Mediation Not Enough to Exhaust Administrative Remedies Under IDEA

The Tenth Circuit Court of Appeals issued its opinion in A.F. v. Espanola Public Schools on Tuesday, July 15, 2015.

Christine B. is the mother of A.F., a child with dyslexia who attended Espanola Public Schools (EPS) in New Mexico. In elementary school, she received Title I services, but made only minimal progress. In middle school, A.F. continued to struggle with language arts, math, and science, and failed half her classes. In 2010, although she was old enough to attend high school, EPS held A.F. back in eighth grade. Halfway through the year, however, she was directed to attend the local high school, where she was given remedial classes in the first half of the day and sat in the library, receiving no direction or tutelage, for the second half of the day. At some point during the spring semester that year, EPS changed A.F.’s schedule and placed her in academic classes for the second half of the day, which she failed. Christine B. asked EPS for evaluation and help for A.F., but EPS said it could be three to six months before the evaluation would occur. A.F. continued to fail her classes.

In February 2012, A.F. filed a due process hearing complaint through Christine B., alleging EPS had failed to identify or evaluate A.F. under the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act, and further alleging EPS had violated the IDEA by failing to timely and comprehensively evaluate A.F. in all areas of need, failing to identify A.F. as eligible for special education services, failing to develop an individualized education program (IEP) for A.F., and failing to provide Christine B. with information required in connection with her evaluation requests. In May 2012, Christine B. and the district resolved the due process complaint by entering into a mediation agreement that purported to resolve all claims under the IDEA. In August 2012, A.F. by and through Christine B. filed in a complaint alleging violation of federal disability discrimination laws pursuant to Section 504 and the ADA and violation of her Fourteenth Amendment due process rights. The complaint was later removed to federal district court, and the district court dismissed her suit due to failure to exhaust administrative remedies. Christine B. appealed.

The Tenth Circuit majority opinion affirmed the district court. Interpreting 20 U.S.C. § 1415(l) to mean that Christine B. was required to first exhaust the procedures in subsection (f) and (g) of that section, the majority concluded that her mediation pursuant to subsection (e) was not enough to exhaust administrative remedies. The majority evaluated the plain language of the statute and Congressional intent in so concluding. The dissent, however, authored by Chief Judge Briscoe, disagreed with the majority’s characterization of Congressional intent, and would have found that mediation under subsection (e) was enough to fulfill the section’s exhaustion requirements. The dissent raised compelling statutory interpretation arguments as well, noting “why would Congress, after creating a framework that quite clearly encourages resolution of IDEA claims by various means, force a claimant to avoid resolution of her claim by mediation or preliminary meeting and lose at both the due process hearing and administrative appeal stages? Doing so would effectively render superfluous the mediation and preliminary meeting provisions of the statute.”

The majority panel of the Tenth Circuit affirmed the district court.