May 19, 2013

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Tenth Circuit: In Forma Pauperis Motions Do Not Require Claims Be Screened for Merit Before IFP Granted

November 29, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in Buchheit v. Green on Tuesday, November 27, 2012.

Mr. Buchheit sued Carol Green, the clerk of the Kansas state appellate courts, and Shawnee County Court Judge Daniel Mitchell, alleging that the Kansas state appellate courts had denied his request to proceed in forma pauperis (IFP) and had refused to docket his state appeals. A magistrate judge granted Mr. Buchheit’s motion to proceed IFP in federal court. Ms. Green objected on the grounds that the magistrate judge failed to screen the complaint under 28 U.S.C. § 1915(e)(2). The district court overruled the objection but dismissed the complaint for lack of subject matter jurisdiction, finding that Mr. Buchheit sought retrospective relief against the state that is barred by sovereign immunity. The Tenth Circuit affirmed.

Ms. Green argued in her cross-appeal that the language of the IFP statute, 28 U.S.C. § 1915(e)(2), requires a magistrate judge to screen cases for merit before granting IFP because the statute states in part that “the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal (i) is frivolous or malicious.” While the purpose of the IFP statute is to discourage the filing of baseless lawsuits that a paying litigant generally would not file, the court held that the statute does not require IFP cases be screened for merit before the grant of IFP.

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Tenth Circuit: Time Limit On HUD Funds Investments and Return of Interest to HUD Affirmed

November 2, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in Muscogee (Creek) Nation Division of Housing v. U.S. Dep’t of Housing and Urban Development on Tuesday, October 30, 2012.

The Muscogee (Creek) Nation (the Nation) received block grant funds for affordable housing under the Native American Housing Assistance and Self-Determination Act of 1996, 25 U.S.C. §§ 4101-4243. Under regulation 24 C.F.R. § 1000.58, funds invested by the Nation could not be invested for longer than two years. In 2007 and 2009, HUD issued notices regarding requirements for investing the funds and stating that for funds invested longer than two years, any interest accrued after two years must be returned to HUD. Additionally, any invested funds that were not expended on affordable housing activities by the two-year period would have to be returned to the tribe’s Line of Credit Control System account.

After a HUD review of the Nation’s use of program funds, HUD required the Nation to return $1.3 million in interest on funds invested longer than two years. The Nation returned the interest under protest, then filed suit seeking return of the funds and injunctive and declaratory relief regarding the validity of 24 C.F.R. § 1000.58(g) and the interest repayment requirement of the 2007 and 2009 notices. The district court dismissed the case based on HUD’s sovereign immunity and, in the alternative, for failure to state a claim.

The Tenth Circuit found that the Administrative Procedures Act did not waive HUD’s sovereign immunity regarding the two-year time limit on investments because “HUD’s authority to approve investment activities is committed to agency discretion as a matter of law.” Thus, the APA’s waiver of sovereign immunity did not apply and dismissal was proper for lack of jurisdiction.

In analyzing the Nation’s claims regarding the 2007 and 2009 notices requiring the return of interest, the court found a 1992 Comptroller General’s decision persuasive. The court held that the notices were interpretive, not substantive, and were consistent with federal law. It affirmed the district court’s dismissal of those claims on failure to state a claim grounds.

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Tenth Circuit: Case Involving Tax Status of Land as Indian Country or Federal Land Should Have Been Dismissed Without Prejudice

October 19, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in Northern Arapaho Tribe v. Harnsberger on Thursday, October 18, 2012.

Plaintiff-Appellant, the Northern Arapaho Tribe (“Appellant” or “Northern Arapaho”), sued various state and county officials in Wyoming, seeking an injunction against the state’s imposition of certain vehicle and excise taxes in an area that Appellant contends is Indian country. Appellant claimed that the state may not tax its members in Indian country, and that the Indian country status of the land was conclusively established by an earlier decision of the Wyoming Supreme Court. The district court dismissed the action with prejudice for failure to join a party under Federal Rule of Civil Procedure 12(b)(7) after determining that two absent entities—the Eastern Shoshone Tribe (“Eastern Shoshone”) and the United States—were necessary parties who could not feasibly be joined, and in whose absence the action could not proceed. The district court also concluded that the Indian country status of the land had not been conclusively determined by the earlier state litigation. Appellant appeals both determinations.

The Tenth Circuit agreed that the dismissal of the action was proper because the Eastern Shoshone was a necessary party  that could not feasibly be joined.  The Court explained that the Eastern Shoshone had an interest in the litigation that could be harmed by the proceeding in its absence, and proceeding in the absence of the Easter Shoshone would also place the State of Wyoming at a substantial risk of incurring multiple inconsistent obligations. The Eastern Shoshone was therefore required to be joined under Rule 19(a).  The Tenth Circuit also found that the district court correctly held that the Eastern Shoshone is a sovereign and is therefore immune from suit, so therefore could not be feasibly joined.

However, the Court VACATED the judgment and remanded with instructions to dismiss without prejudice, since the district court’s disposition was not an adjudication on the merits. Finally, the Court also DENIED as moot Appellant’s Rule 27.2(A) motion for summary disposition or remand.

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Colorado Court of Appeals: In Interlocutory Appeal, Immunity Found Not Waived Under CGIA and Trial Court’s Order Reversed

October 16, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Daniel v. City of Colorado Springs on Thursday, October 11, 2012.

Governmental Immunity—CRS § 24-10-106(1)(e)—Public Parking Lots.

Defendant, the City of Colorado Springs (City), brought this interlocutory appeal of the district court’s order denying its motion to dismiss, on governmental immunity grounds, the complaint filed by plaintiff Marilyn Daniel. The order was reversed and the case was remanded.

Plaintiff alleged she was injured when she fell after stepping into a hole in a parking lot for the public Valley Hi Golf Course, which was owned and maintained by the City. She asserted the City knew or should have known about the dangerous condition of the parking lot.

The City moved to dismiss pursuant to CRCP 12(b)(1) for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA). Plaintiff argued that immunity had been waived, under CRS § 24-10-106(1)(e), for a dangerous condition of any public facility located in any park or recreation area maintained by a public entity. The City responded that the phrase “in any park or recreation area” includes only places and areas within a golf course, but not the parking lot. The trial court denied the City’s motion to dismiss and the City brought an interlocutory appeal.

On appeal, the Court of Appeals emphasized that waiver was for a dangerous condition located in any park or recreation area. It also noted that before the 1986 amendments to the CGIA, the statute had excepted immunity for a “public parking facility” and that this section was deleted by the amendments. The Court followed other decisions that found this deletion was intended to remove the exclusion from governmental immunity to such areas. It therefore was error to find that the City’s immunity was waived. The order was reversed and the case was remanded with directions to dismiss the complaint against the City.

Summary and full case available here.

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Colorado Court of Appeals: Breach of Fiduciary Duties Arising from Trust Agreement Against Trustees Not Barred by Governmental Immunity; Barred Against Colleges

August 21, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Casey v. Colorado Higher Education Insurance Benefits Alliance Trust on August 16, 2012.

Trust—CRCP 12(b)—Subject Matter Jurisdiction—Colorado Governmental Immunity Act—Tort—Contract—Breach of Fiduciary Duty—Economic Loss Rule—Breach of Covenant of Good Faith and Fair Dealing—Mistake—Inverse Condemnation.
In this class action suit, defendants, the Colorado Higher Education Insurance Benefits Alliance (CHEIBA) Trust, the eight other colleges that participated in the original trust and that continue to participate in the new CHEIBA Trust, and the trustees of the CHEIBA Trust, appealed the court’s order denying their CRCP 12(b) motion to dismiss the claims of plaintiffs, a class of employees who participated in the trusts at issue in this case. The order was affirmed in part and reversed in part, and the case was remanded for further proceedings.

Beginning in 1992, employees of nine Colorado colleges, including Mesa State College, contributed to a trust designed to provide long-term disability benefits for them if they were to become disabled. The trust agreement required the employees and Mesa State to make these contributions. The original trust was succeeded in 2003 by the CHEIBA Trust. Mesa State withdrew from the CHEIBA Trust in 2005 and created a new disability trust. CHEIBA refused Mesa State’s request to release to its new disability trust approximately $1 million from the reserve fund that Mesa State and its employees had contributed to the original trust and to the CHEIBA Trust. This interlocutory appeal was limited to determine only issues of sovereign immunity.

On appeal, defendants contended that the probate court lacked subject matter jurisdiction because all of the employees’ claims are barred by the Colorado Governmental Immunity Act (CGIA). The CGIA bars any action against a public entity or its employees that lies in tort or could lie in tort regardless of the form of relief chosen by the claimant. The CGIA does not apply to contract actions. The trust agreements are the source of the trustees’ fiduciary duty described in the employees’ breach of contract claim. As a result, the economic loss rule bars the employees from any tort recovery from the trustees. Therefore, the employees’ breach of fiduciary duty and breach of the covenant of good faith and fair dealing claims arising from the trust agreement against the trustees is not barred by the CGIA. However, the allegation that the colleges breached any fiduciary duties they owed the employees did lie, or could have lied, in tort as the trust agreement did not place any fiduciary duties on the colleges. Therefore, this portion of the breach of contract claim against the colleges is barred by the CGIA. On the other hand, the claim that the colleges violated the implied covenant of good faith and fair dealing is not barred because it does not, and cannot, lie in tort.

Defendants also contended that the CGIA bars the employees’ inverse condemnation claim. Because an inverse condemnation claim could not lie in tort, it is not barred by the CGIA.

Defendants further asserted that language in the trust agreements bars the employees from obtaining the relief they seek. Specifically, both trust agreements explicitly provide that contributions are irrevocable unless a majority of the trustees votes to dissolve the trusts. Plaintiffs claim that their contributions to the CHEIBA trust are null and void because of either unilateral or mutual mistake. The doctrine of mistake allows the mistaken party to avoid the contract and lies or could lie in tort. Therefore, this part of the declaratory judgment claim is barred by the CGIA.

Summary and full case available here.

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Colorado Court of Appeals: Playground Equipment at a Public School Considered “Public Facility” for Purposes of Waiver of Colorado Governmental Immunity Act

July 10, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Loveland v. St. Vrain Valley School District RE-1J on July 5, 2012.

Governmental Immunity—Subject Matter Jurisdiction—Injuries on School Playground.

During lunch recess on November 21, 2008, a 9-year-old minor child (the minor) suffered a compound fracture of her left arm when she fell from a playground apparatus. The minor, through her parents and next friends, sued defendants St. Vrain Valley School District RE-1J (school district) and Cathy O’Donnell, alleging claims of premises liability and negligent supervision. The trial court dismissed all claims against defendants. The Court of Appeals affirmed in part and reversed in part, and the case was remanded with directions.

The common law doctrine of sovereign immunity was abrogated by the Colorado Supreme Court in a 1971 trilogy of cases. The General Assembly responded by enacting the Colorado Governmental Immunity Act (Act), which includes an immunity waiver for a “dangerous condition of any public hospital, jail, public facility located in any park or recreation area maintained by a public entity. . . .” Defendants filed a CRCP 12(b)(1) motion, arguing lack of subject matter jurisdiction. The trial court granted the motion, holding that the playground apparatus did not constitute a “public facility” under the Act.

On appeal, plaintiffs argued it was error to conclude the apparatus is not a “public facility” under the Act, and the Court agreed. The Court found the phrase “public facility” ambiguous and therefore looked to rules of statutory construction and legislative history to ascertain intent. The Court found that the apparatus clearly was “public,” given its availability to all, and that it was a “facility,” because it was a man-made, mechanical device installed on a playground for the purpose of providing recreation. The legislative history supported this conclusion. The trial court decision was reversed and remanded on this issue.

Plaintiffs also argued that it was error to conclude that the tort of negligent supervision is not a recognized exception to sovereign immunity under the Act. The Court disagreed and affirmed on this issue. The Court noted that all parties agreed that injuries resulting from negligent supervision were not among the tortious injuries for which sovereign immunity has been expressly waived. Plaintiffs’ arguments for an implied waiver are of no avail because the case law is clear that, absent specific language unambiguously waiving sovereign immunity, implied waiver is disallowed by the Act.

Summary and full case available here.

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HB 12-1361: Amending Governmental Immunity Act to Disallow Sovereign Immunity for Claims Arising from Prescribed Fires On or After January 1, 2012

May 14, 2012 by Leave a Comment

On May 3, 2012, Rep. Bob Gardner and Sen. Bill Cadman introduced HB 12-1361 – Concerning Claims Against the State Arising Under the “Colorado Governmental Immunity Act.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In connection with the “Colorado Governmental Immunity Act” (CGIA):

  • The bill expands the definition of “dangerous condition” to include a prescribed fire started or maintained by the state. In addition to any other claims for which the state waives immunity under the CGIA, the bill waives sovereign immunity in connection with claims against the state in an action for injuries resulting from a dangerous condition caused by a prescribed fire started or maintained by the state or any of its employees on or after January 1, 2012.
  • The bill specifies that it shall not be construed to constitute a waiver of sovereign immunity if the injury arises from any act, or failure to act, of a state employee if the act is the type of act for which the state employee would be or heretofore has been personally immune from liability.
  • The bill also specifies that the state shall also have the same immunity as a state employee for any act or failure to act for which a state employee would be or heretofore has been personally immune from liability.

The bill modifies existing law to clarify the requirements under which an amount may be recovered against the state in excess of the maximum liability amounts specified in the CGIA. The bill clarifies existing provisions to specify that the general assembly acting by bill may authorize payment of all or a portion of a judgment against the state that exceeds the maximum amounts.

The bill sets up an alternate procedure under which the state claims board, after compromising or settling a clam on behalf of the state for the maximum liability limits under the CGIA, is empowered to determine, in its sole discretion, whether to recommend to the general assembly that the general assembly, by bill, authorize all or any portion of any such additional payment. In determining whether to make such recommendation, the claims board is required to consider interests of fairness, the public interest, and the interests of the state. A recommendation made by the claims board shall not include payment for noneconomic loss or injury and is to be reduced to the extent the claimant’s loss is or will be covered by another source, including any insurance proceeds that have been paid or will be paid, and no insurer shall have a right of subrogation against the claimant for any additional payment or any portion of such payment that is approved by the general assembly. Any additional payment or any portion of such payment approved by the general assembly is to be paid from the general fund.

The bill was introduced on May 3. On May 4 the Appropriations committee referred the unamended bill to the full House for consideration on 2nd Reading. On Friday, May 4 the bill passed on 2nd Reading with amendments. On Monday, May 7, the House adopted the bill on 3rd Reading on a vote of 59-5-1.

Since this summary, the bill passed all three readings in the Senate, unamended.

Summaries of other featured bills can be found here.

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Tenth Circuit: Tribe Failed to State a Claim that Oklahoma Cigarette Sale and Tax Laws Violate Federal Law or Tribal Sovereignty

February 29, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Muscogee (Creek) Nation v. Henry on Tuesday, February 28, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner Tribe sued the Oklahoma Tax Commission seeking declaratory and injunctive relief based on numerous claims challenging three Oklahoma statutes that tax and regulate the sale of cigarettes and other tobacco products. “In Oklahoma, cigarette and other tobacco product sales to tribal members in Indian country are exempt from state taxes. To prevent non-tribal members from avoiding taxes on their purchases of such products in Indian country, Oklahoma adopted a tax-stamp scheme to ensure that taxes are collected for those sales. Oklahoma also requires tobacco product manufacturers either to enter into and make payments under a Master Settlement Agreement with the State or to pay a certain percentage of each sale into an escrow fund. Any brand of cigarette produced by a manufacturer that does not comply with these requirements is deemed contraband.” Petitioners object to these requirements as violative of federal law and tribal sovereignty, claiming that they are preempted by the Indian Trader Statutes and violate violate their right to tribal self-government. The district court dismissed the claims “based on the State’s Eleventh Amendment immunity or, alternatively, for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”

The Court held that, based on Supreme Court precedent, the Tribe “has failed to state a plausible claim that the Excise Tax Statute is not valid and enforceable based either on preemption or on infringement of [their] right of tribal self-government.” The Tribe similarly failed to state a plausible claim that the Escrow Statute and the Complementary Act are invalid and unenforceable. While the district court erred in finding that immunity under the State’s Eleventh Amendment, it properly dismissed the claims for failure to state a claim.

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Tenth Circuit: Equal Access to Justice Act Requires Parties to Prevail Against the United States to Be Awarded Attorney’s Fees

May 11, 2011 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in United States v. Poche on Tuesday, May 10, 2011.

The Tenth Circuit reversed the district court’s decision. Petitioner United States appeals the district court’s award of attorney’s fees and costs to Respondents. The United States contends that its sovereign immunity divested the district court of jurisdiction to award fees and costs against the United States, and that, even if the district court had jurisdiction, the amount awarded constitutes an abuse of discretion. The parties agree that the potentially applicable waiver of immunity is found in the Equal Access to Justice Act, which provides: “Except as otherwise specifically provided by statute, a judgment for costs . . . may be awarded to the prevailing party in any civil action brought by or against the United States.” However, in this situation Respondents were not the prevailing party against the United States, and therefore the waiver is not applicable to allow jurisdiction to award attorney’s fees.

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