April 27, 2017

HB 17-1141: Providing Equal Protection from Deprivation of Constitutional Rights by a Federal Employee

On February 1, 2017, Rep. Kimi Lewis introduced HB 17-1141, “Concerning the Malicious Deprivation of Constitutional Rights by a Federal Employee Related to Public Lands.”

The bill makes it illegal for a person who is a federal employee acting under color of law to take any action:

  • That deprives a range allotment owner of any property right appurtenant, inherent, or related to the range allotment, including the right to possess, use, dispose of, exclude other from, or defend the range allotment; and
  • For which the deprivation offends due process or is a physical or regulatory taking without the payment of just compensation.

A violation is an unclassified felony punishable by a fine of up to $500,000 and imprisonment of up to 5 years, or both. An owner who suffers a loss as a result of the person’s actions also has a civil right of action to recover damages.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs Committee. It is scheduled to be heard in committee on February 22, 2017, at 1:30 p.m.

Jury Selection in a High-Profile Death Penalty Case

On April 19, 1995, a Ryder truck filled with explosives parked outside the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, and detonated. The blast damaged 324 buildings in a 16-block radius, 168 people were killed in the attack, and 680 were injured. Many of the deceased were children; an “America’s Kids” child care center was inside the federal building, and 15 of the 21 infants and children at the child care center were killed.

Approximately 80 minutes after the attack, Timothy McVeigh was pulled over for a missing registration tag on his 1970s yellow Mercury. When the officer stopped McVeigh’s vehicle, McVeigh got out of the car and the officer could see the outline of a gun under his jacket. McVeigh admitted he had the weapon and it was loaded, and the trooper arrested him and booked him into jail. Within days of the attack, the Ryder truck was linked to McVeigh and his friend Terry Nichols, McVeigh’s Army buddy.

McVeigh and Nichols were charged with eleven counts: (1) conspiracy to use a weapon of mass destruction; (2) use of a weapon of mass destruction; (3) destruction by explosive related to the Murrah building; and (4) through (11) first degree murder, for the deaths of seven federal law enforcement officers who died in the Murrah building. McVeigh and Nichols were tried separately.

Both defendants moved to disqualify the federal judge presiding over the case. Only Nichols appealed for mandamus from the denial; the Tenth Circuit found that because the judge’s own chambers were destroyed in the blast, it would be difficult for the judge to be fair and impartial. Venue was moved in Nichols’ case to Colorado.

N. Reid Neureiter represented Nichols in his death penalty case. He faced many difficult issues in jury selection and during trial. On Wednesday, December 21, 2016, he will discuss the case and the voir dire issues as part of a half-day program, “Courtroom Technology and Voir Dire.” To register, call (303) 860-0608 or click the links below.

 

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CLE Program: Courtroom Technology and Voir Dire

This CLE presentation will occur on December 21, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 9 a.m. to 12 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: CD • MP3Video OnDemand.

Courthouse of the U.S. District Court Closed on Friday, December 9, 2016

The U.S. District Court for the District of Colorado announced a courthouse closure. On Friday, December 9, 2016, from 12:45 to 6 p.m., the courthouse will be closed for business due to a law enforcement training exercise. The Alfred A. Arraj Courthouse will be closed to the public. The Byron G. Rogers Courthouse will remain open, but no court business will be conducted. Court business in the Durango and Grand Junction courthouses will be conducted as scheduled. All electronic systems to include CM/ECF and PACER will remain in operation during this time period. For more information, click here.

Tenth Circuit: Federal Health Insurance Contract’s Terms Preempt State Antisubrogation Statute

The Tenth Circuit Court of Appeals issued its opinion in Helfrich v. Blue Cross & Blue Shield Association on Thursday, October 29, 2015.

Lee Ann Helfrich is a federal employee enrolled in a federal-employee health insurance plan, the Blue Cross & Blue Shield Service Benefit Plan (Plan). In December 2012, she was involved in a car accident and suffered serious injuries. The Plan paid $76,561.88 in benefits for her injuries, and she settled with the other driver for his policy limits of $100,000. The Plan sought reimbursement of its benefits paid as a subrogated insurer. Helfrich filed a petition in Kansas state court against Blue Cross, arguing a state regulation prohibiting subrogation negated Blue Cross’s claims. Blue Cross removed to federal court and argued the Federal Employees Health Benefits Act of 1959 (FEHBA) preempted the federal regulation. Blue Cross moved for judgment on the pleadings, and the district court held that the Kansas antisubrogation law was preempted by 5 U.S.C. § 8902(m)(1). The district court granted Blue Cross’s motion and Helfrich appealed.

On appeal, the Tenth Circuit likened Helfrich’s situation to the situation presented in Boyle v. United Technologies Corp., 487 U.S. 500 (1988), in which the Supreme Court set forth a test to determine whether federal law preempts state law. The Tenth Circuit found that Blue Cross contracted with the federal government pursuant to FEHBA to provide insurance benefits for federal employees, and its federal contract required it to seek reimbursement of costs paid that were ultimately reimbursed by a third party. The Tenth Circuit noted that Boyle introduced the Federal Tort Claims Act’s discretionary-function standard as a test to determine whether there was a significant conflict between state law and the term of a government contract, noting that state law must yield if such a conflict exists. The Tenth Circuit found that conflict present here, since the contract between Blue Cross and the government and the provision of quality health care to government employees are matters of federal concern. The Tenth Circuit found the Plan’s reimbursement provision served important functions that were undermined by Kansas’ antisubrogation provision, and noted that here, state law outright forbids Blue Cross from fulfilling its contractual obligations. The Tenth Circuit held that the government’s strong interest in uniformity required federal preemption, since states without an antisubrogation provision would end up financing health care costs for claimants in states with such provisions if preemption did not apply.

Blue Cross also argued that FEHBA’s preemption provision provided another ground for overriding the Kansas antisubrogation provision, and the Tenth Circuit agreed. The Tenth Circuit analyzed the language of the provision and found that Blue Cross’s reimbursement rights arose at the payment of benefits; if Helfrich had not pursued reimbursement from the other driver, Blue Cross reserved the right to do so on her behalf. Analyzing case law from its circuit and others, the Tenth Circuit found strong support for Blue Cross’s preemption argument.

The Tenth Circuit affirmed the district court. Judge Lucero wrote a concurrence, agreeing with the conclusion but disagreeing with the majority’s application of federal common law preemption.

Colorado Court of Appeals: Attorney Fee Request Under 42 U.S.C. § 1988 Not Moot

The Colorado Court of Appeals issued its opinion in Libertarian Party of Colorado v. Colorado Secretary of State on Thursday, January 14, 2016.

Two recall election candidates, Gordon Roy Butt and Richard Anglund, requested the Secretary of State’s approval to circulate petitions as successor candidates in a General Assembly recall election. The Secretary denied their petitions as untimely because they were submitted after a deadline in C.R.S. § 1-12-117. The candidates and the Libertarian Party (collectively, “Libertarian Party”) appealed, arguing the Secretary violated their constitutional right to access to the ballot because the statutory deadline conflicted with a later deadline in the Colorado Constitution.

The Libertarian Party asked the court to order the Secretary to accept candidate petitions until the constitutional deadline, requested injunctive and declaratory relief under § 1983, and requested attorney fees under § 1988. In an expedited proceeding, the district court held that the statute conflicted with the constitution and therefore was void and ordered the Secretary to enforce only the constitutional deadline, but did not address the §§ 1983 and 1988 claims. The Colorado Supreme Court denied certiorari.

The Libertarian Party then moved for summary judgment on its §§ 1983 and 1988 claims, but the district court ruled that the federal claims were effectively dismissed when the Libertarian Party failed to file a Rule 59 motion for amended judgment. On appeal, the court of appeals found the § 1983 claim was moot, because the Libertarian Party’s claim for injunctive relief was satisfied by the district court’s original order and the claim for declaratory relief became moot when the General Assembly amended the statute. However, the court of appeals found that the § 1988 claim may have survived. Because the Libertarian Party prevailed on its state law claim, it still may be entitled to attorney fees under § 1988 because its federal claims were joined with its state law claims.

The court of appeals remanded for determination of the Libertarian Party’s § 1988 claim.

Run the Red Rock Scramble 5.8K to Benefit the Colorado Indian Bar Association

RedRockScrambleThe Colorado Indian Bar Association is hosting its annual fundraiser, the Red Rock Scramble, on Sunday, October 11, 2015, at 10 a.m. This 5.8K run on a hard-packed dirt road with beautiful views of the flatirons and surrounding mountains benefits the CIBA and raises money for scholarships to benefit one student each year in attendance at the University of Denver Sturm College of Law and the University of Colorado School of Law who will be practicing in the field of Federal Indian Law or who commits to working with American Indian communities. Registration for the run is only $30, and small prizes will be awarded to the top male and female runners in each of several age categories. CIBA will also provide a $50 gift certificate to a running store to the overall top male and female runners. Click here to register and for more information about the race.

The Colorado Indian Bar Association is a local bar association consisting of American Indian lawyers, practitioners of American Indian law, and American Indian law students in Colorado. CIBA promotes the development of Indian Law for the maximum benefit of Indian people, strives toward justice and effective legal representation for all Indian people, provides a forum for Native Americans to become more involved in the local and national issues affecting Indian people, provides networking and support to encourage Native Americans to pursue careers in the law, and promotes the nomination of Native Americans for judicial appointments.

Register today for the Red Rock Scramble!

Comment Period Open for Proposed Changes to U.S. District Court Local Rules

The comment period is now open for proposed amendments to the local rules for the U.S. District Court for the District of Colorado. The proposed revision affects D.C.Colo.L.Cr.R. 11.1(b) and is intended to facilitate implementation of the proposed Durango and Grand Junction protocol. The changes specifically reference Durango and Grand Junction cases:

(b) Pleas Before District Judgein a Felony Case. In a felony case, a plea of guilty or nolo contendere shall be made before the assigned district judge.; however, in a felony case designated as a Durango or Grand Junction case, with the express written consent of the government and defendant (using the form found HERE) and on referral for recommendation by the assigned district judge, the resident magistrate judge in Durango and Grand Junction, Colorado, may accept a plea of guilty or nolo contendere and conduct a corresponding advisement under Fed. R. Crim. P. 11.

Comments regarding the proposed changes may be emailed to the court clerk at LocalRule_Comments@cod.uscourts.gov. Comments should be titled “Comment to Proposed Amendment to D.C.COLO.LCrR 11.1” and must be received no later than the close of business on Monday, April 6, 2015.

Tenth Circuit: Creating Diversity Jurisdiction by Collusively Assigning Interest Is Improper

The Tenth Circuit Court of Appeals issued its opinion in National Fitness Holdings, Inc. v. Grand View Corporate Centre, LLC on Thursday, April 24, 2014.

Several Utah citizens sued J. Hoyt Stephenson in the United States District Court for the District of Utah. Stephenson responded with state-law counterclaims and a third-party complaint asserting state-law claims against other Utah citizens. The district court dismissed Stephenson’s counterclaims and third-party claims, finding that Stephenson was a Utah citizen—not a Wyoming citizen—so it lacked diversity jurisdiction to hear Stephenson’s claims. Stephenson then created National Fitness Holdings, Inc. and incorporated it in Wyoming. Stephenson was the sole director, officer, and shareholder. A week after creating National, Stephenson assigned it all his stock in three companies and his interest in Utah real property. Four days after that, National sued Grand View Corporate Centre, LLC in the United States District Court for the District of Utah. Defendants moved to dismiss under F.R.C.P. 12(b)(1), arguing that Stephenson improperly made the assignments to manufacture diversity jurisdiction. The district court agreed and granted defendants’ motion.

The Tenth Circuit affirmed, undergoing a detailed analysis of 28 U.S.C. § 1359 and concluding that the district court properly dismissed the case for lack of diversity jurisdiction.

Tenth Circuit: DOI Attorney’s Convictions of CFR Violations Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Baldwin on Tuesday, February 18, 2014.

Charles Baldwin drove out of the Denver Federal Center at his workday’s end. While still on the Federal Center grounds, Commander Kevin Lundy stopped Mr. Baldwin’s truck because he’d seen him speeding and swerving to avoid a bicyclist, and he wanted to issue a warning. But before Commander Lundy could finish the warning, Mr. Baldwin drove off, ignoring shouted commands to stop. In response, Commander Lundy took to his police car and followed Mr. Baldwin off the Federal Center’s grounds, stopped him again, and asked for his driver’s license, registration, and proof of insurance.

According to Commander Lundy, Mr. Baldwin refused to comply and had to be forced from his vehicle and restrained with handcuffs. Commander Lundy issued various tickets and allowed Mr. Baldwin to go on his way.

After a bench trial before a federal magistrate judge, the court convicted Mr. Baldwin of three offenses. Two of these offenses — failing to comply with the lawful direction of a Federal police officer and impeding or disrupting the performance of a government employee’s official duties — were premised on federal regulations 41 C.F.R. § 102-74.385 and 41 C.F.R. § 102-74.390(c). The third — attempting to obstruct a peace officer — was based on Colorado state law and the Assimilative Crimes Act. Because Mr. Baldwin was an attorney for the Department of Interior, he appealed his convictions acting as his own lawyer.

Mr. Baldwin first argued that violating these two federal regulations wasn’t a crime, which were no more than administrative rules or policies. By some scratching, the court found that Congress did expressly authorize the General Services Administration and then the Department of Homeland Security to establish regulations for the protection and administration of property owned or occupied by the Federal Government and to prescribe “reasonable” penalties of “not more than 30 days” in prison and fines in the amounts allowed by Title 18.

Even if the regulations impose criminal penalties, Mr. Baldwin argued their terms were so vague they violated the Constitution’s due process guarantee. Criminal offenses must be defined with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. It’s clear from the terms of regulations that, whatever else they do or don’t proscribe, driving off while a uniformed officer is busy issuing a warning, and doing so over the officer’s instructions to stop, counts as disobeying that person’s directions and disrupting performance of his official duties. The regulations could perhaps be successfully challenged as impermissibly vague as applied in other situations, but under the law as it stands today, the court failed to see how they might be in this situation.

Next, Mr. Baldwin argued the regulations violated the Constitution’s due process guarantee because the regulations lack any mens rea requirement. However, neither 41 C.F.R. § 102-74.385 nor 41 C.F.R. § 102-74.390 makes any mention of a required mental element to complete the offenses they describe. However, a law’s silence about mens rea doesn’t necessarily mean violating it isn’t a crime, as Mr. Baldwin would have the court conclude. In fact, the courts of the United States have long said they will read criminal statutes as implicitly requiring proof of mens rea even when they don’t require such proof explicitly.

In sum, the evidence surrounding the initial stop easily supported the conclusion that Mr. Baldwin knew his conduct amounted to a disregard of a police officer’s lawful order and disrupted or impeded the officer’s duty on federal grounds.

Finally, Mr. Baldwin challenged the sufficiency of the evidence supporting his third conviction under Colorado law and the Assimilative Crimes Act. Mr. Baldwin was accused of knowingly using “an obstacle” in a “substantial step toward” obstructing or hindering “the preservation of the peace by a peace officer, acting under color of his or her official authority,” while on federal property. The court found that the evidence was sufficient to show all this beyond a reasonable doubt, too. Rather than listen to a warning about how his speeding had endangered others — a warning Commander Lundy tried to issue under color of official authority in order to preserve the peace — Mr. Baldwin sought to use his vehicle as an obstacle to get away (to “obstruct” Commander Lundy’s inquiry). And whatever his status under federal law, Commander Lundy, along with his fellow Federal Protective Service officers, was clearly and expressly treated as a “peace officer” for purposes of Colorado law.

The Tenth Circuit pointed out that Mr. Baldwin’s points were not without some power. But in light of the circumstances, the court was compelled to affirm.

AFFIRMED.

Tenth Circuit: District Court Lacked Jurisdiction Under FTCA and Tucker Act in FDIC Receivership Case

The Tenth Circuit Court of Appeals published its opinion in ECCO Plains, LLC. v. United States on Wednesday, September 4, 2013.

Ken Ulrich is the majority owner of High Plains Cattle Company, LLC. High Plains and Doug English formed ECCO Plains, LLC, to raise cattle for sale. Each made a $7,000,000 capital contribution to ECCO Plains. High Plains financed its capital contribution with a loan from the New Frontier Bank; Ulrich personally guaranteed the debt. English also financed his capital contribution from the Bank. No ECCO Plains assets were pledged as security for either loan. As part of the ECCO Plains operating agreement, the parties agreed that High Plains would, upon request, receive a return of its capital contribution before English received any of his capital contribution. The Bank, as well as FDIC, had a copy of the agreement. After the Bank became insolvent, FDIC was appointed receiver.

ECCO Plains sold approximately $5,500,000 worth of cattle to a packing house in Northern Colorado. FDIC caused the packing house to make the sale proceeds payable to both ECCO Plains and FDIC. High Plains made a written demand to FDIC to apply 100% of the sale proceeds to High Plains’ loan. The demand was based on its 50 percent membership interest in ECCO Plains and the terms of the ECCO Plains/English operating agreement. English, on the other hand, instructed FDIC to apply 50% of the proceeds to the High Plains loan and the other 50% to the English Cattle Company loan. FDIC, however, did neither. Instead, it applied all of the proceeds to the English Cattle Company loan. It then sold that loan, along with the High Plains loan, to third parties.

ECCO Plains, High Plains and Ulrich filed suit against the United States. All three alleged conversion and negligence under the Federal Tort Claims Act FTCA. ECCO Plains also alleged a Fifth Amendment Takings Claim. The government moved to dismiss based on lack of subject matter jurisdiction or, in the alternative, for failure to state a claim. The district judge granted the motion. He concluded ECCO Plains’ FTCA claims should be dismissed for lack of subject matter jurisdiction because it failed to file a notice of claim. The remaining claims were dismissed for failure to state a claim.

The Tenth Circuit first considered High Plains and Ulrich’s conversion and negligence claims. While those claims would be covered by the FTCA, the FTCA excludes claims arising out of interference with contract rights. The court agreed with the government that High Plains and Ulrich’s claims were actually that the FDIC interfered with their contractual right to the proceeds of the sale. Their complaint satisfied the elements of interference with contract under Colorado law and treatises in effect at the time of the FTCA’s enactment. The court held that the district court lacked subject matter jurisdiction over the conversion and negligence claims.

The court also held that ECCO Plain’s Fifth Amendment Takings claim should have been construed as an illegal exaction claim and dismissed for lack of jurisdiction. An illegal exaction claim exists when “the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum that was improperly paid, exacted, or taken from the claimant in contravention of the Constitution, a statute, or a regulation.” Under the Tucker Act, the United States Court of Federal Claims has jurisdiction over illegal exaction claims when the exaction is based on an asserted statutory power. Here, the FDIC acted under its receivership powers to take control of the cattle sale money.

The court reversed the district court’s dismissal of High Plains and Ulrich’s negligence and conversion claims and ECCO Plains’ Fifth Amendment Takings claim for failure to state a claim and remanded to the district court to dismiss the claims for lack of jurisdiction.

Tenth Circuit: 28 U.S.C. § 1447(d) Prohibits Review of Remand Order Based on Lack of Subject Matter Jurisdiction

The Tenth Circuit published its opinion in Hill v. Vanderbilt Capital Advisors, LLC on Thursday, December 27, 2012.

Plaintiffs filed an action against Vanderbilt Capital Advisors, LLC and others in New Mexico state court. The suit was removed to federal court. The district court remanded the entire case back to state court, concluding that it lacked subject matter jurisdiction because Plaintiffs did not have standing to sue. 28 U.S.C. § 1447 governs cases removed from state court and § 1447(d) prohibits appellate review of remand orders where the remand was based on lack of subject matter jurisdiction. Because a dismissal for lack of standing “can be at least colorably characterized as a dismissal for lack of subject matter jurisdiction,” the Tenth Circuit held that under 28 U.S.C. § 1447(d), it had no jurisdiction to hear an appeal of the remand order.

Comment Period Open for Changes to Federal Rules of Practice and Procedure

The United States Courts has opened the public comment period for several proposed changes to the Federal Rules of Practice and Procedure. Comments must be submitted in writing by February 15, 2013.

The changes affect the Federal Appellate, Bankruptcy, Criminal, and Evidence rules. They were approved for publication by the Judicial Conference Advisory Committees on the Appellate, Bankruptcy, Criminal, and Evidence Rules on June 11, 2012, and the public comment period opened August 15, 2012.

The following rules were affected by the proposed changes:

  • Federal Rules of Appellate Procedure, Rule 6;
  • Federal Rules of Bankruptcy Procedure, Rules 1014(b), 7004(e), 7008, 7012, 7016, 7054, 8001-8028, 9023, 9024, 9027, and 9033, and Offiical Forms 3A, 3B, 6I, 6J, 22A-1, 22A-2, 22B, 22C-1, and 22C-2;
  • Federal Rules of Criminal Procedure, Rules 5(d) and 58;  and
  • Federal Rules of Evidence, Rules 801(d)(1)(B) and 803(6), (7), and (8).

A PDF of the changes can be found here. Comments must be submitted to the Advisory Committees in writing, and will be reviewed then made part of the public record. All comments can be viewed through the U.S. Courts website by clicking the links to the Rules sets.