August 24, 2019

Archives for February 2012

Tenth Circuit: Panel Decision Affirmed Granting Lifetime and Survivor Benefits under Black Lung Benefits Act

The Tenth Circuit Court of Appeals published its opinion in Bridger Coal Co. v. United States Dep’t of Labor on Tuesday, February 28, 2012.

The Tenth Circuit affirmed the panel decision. Under the Black Lung Benefits Act, a coal miner who is totally disabled due to pneumoconiosis from coal mine employment is entitled to lifetime benefits. If the miner dies due to pneumoconiosis from coal mine employment, the miner’s surviving spouse is entitled to benefits. Pursuant to the Act’s administrative provisions, an Administrative Law Judge awarded lifetime benefits to Merrill D. Lambright and survivor benefits to his widow in 2005. Lambright’s claims arose out of his employment with Petitioner Coal Company. In 2006, a three-member panel of the U.S. Department of Labor Benefits Review Board vacated the ALJ’s decision and remanded for reconsideration. In 2008, the ALJ denied benefits on both the lifetime and survivor claims. In 2009, a three-member panel of the Board reversed this decision and reinstated the 2005 ALJ’s award of benefits. On reconsideration en banc, the full five-member Board was unable to reach a disposition in which at least three permanent members concurred. As a result, the 2009 panel decision stood. Petitioner appeals, challenging the scope of the 2009 panel’s authority to review the 2008 ALJ decision, the standard used in determining whether to award benefits, and the onset-date determination. The Court affirmed the 2009 panel decision.

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

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.

Tenth Circuit: Lengthy Delay from Conviction to Entry of Final Judgment Exceeded Norm But Did Not Rise to Level of Constitutional Speedy Trial Violation

The Tenth Circuit Court of Appeals published its opinion in United States v. Gould on Tuesday, February 28, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner, a former prison guard, was convicted of two counts of depriving an inmate of his rights under color of law and two counts of filing a false report. These convictions arose out of Petitioner’s use of excessive force against two inmates in two different detention centers, and his subsequent filing of false reports to cover up the incidents. Petitioner “seeks reversal of his convictions and dismissal of all charges against him, arguing 1) that the delay between his conviction and the entry of final judgment violated his Sixth Amendment right to a speedy trial; and 2) that the district court erred in excluding from evidence three memoranda he wrote.”

The Court state that, to determine whether a particular delay violates a defendant’s right to a speedy trial, a four-factor test must be applied: “(1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant.” Balancing these factors, the Court concluded that Petitioner has not established a Sixth Amendment speedy trial violation. “While this result is troubling given the lengthy delay from conviction to the entry of final judgment, a delay which certainly exceeded the norm of timely criminal case processing, it does not rise to the level of a constitutional speedy trial violation.” Additionally, the exclusion of the memorandum evidence was harmless because Petitioner testified about the content of the documents and the content was not disputed.

Tenth Circuit: Unpublished Opinions, 2/28/12

On Tuesday, February 28, 2012, the Tenth Circuit Court of Appeals issued three published opinions and five unpublished opinions.


Leo v. Garmin Int’l, Inc.

United States v. Rodriguez-Garcia

Leo v. Garmin Int’l, Inc.

United States v. Sletten

Leo v. Garmin Int’l, Inc.

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tom Matte: Distinguish Your Law Firm on Your ‘About Us’ Page

Take control of your valuable online turf with a great ‘About Us’ page or you’ll waste a prime opportunity to define your firm’s strengths and unique niche.

What’s the most important part of your law firm’s web site? Your home page of course, but it may surprise you to learn that for smaller firms the runner-up is your ‘About Us’ page, according to Kevin Levi. He lays out some great ideas to boost the utility of this critical space in his article on Marketing Profs.

You don’t want to throw everything into one overstuffed jumble of a page, but you do need to include clear and well-crafted distinguishing messages on that precious high-profile web space. Marketing legal services to small business relies heavily on Internet searches. Once a search has brought potential customers to your site, if they’re interested in what your law firm offers they are likely to head for your ‘About Us’ page to learn more. Give them the information they need to understand what makes your firm and attorneys special. Here are four key elements on which to focus:

Positioning statement.  This is the elevator pitch that you carry around in your head. It lets readers know in a very few words (under 35 is the general rule) exactly what you do, for whom and why they want it. Being concise helps ensure that your message comes through clearly and sticks with readers.

Primary Differentiator. Here’s your chance to explain what it is that makes your firm perfectly suited to handle a potential client’s business. Do you focus on a particular industry or practice area that no one else does or is it the way you deliver your services? Do you serve a very specific client base? Whatever you do, don’t resort to generic claims of excellence or quality. Instead, focus on the most important element of your unique profile, whether that’s based on exceptional experience, unmatched skill, unusual services for a highly specialized legal market or something else. Let people know the real reason your law firm is the best choice out of the many options they find.

Secondary Differentiator. This is a chance to share more about your company’s defining characteristics. Again, limit it to aspects of your services and attorneys that aren’t likely to be shared by the competition.

Company Description.  Include objective information about your company such as location, longevity, history, goals and formative experiences.

A page with this level of description should add to and expand on the first impression readers received from your home page. Make sure what you say here agrees but also further educates instead of simply repeating what you’ve already shared. It’s the ideal place to market your law firm because almost anyone who lands here is already interested in legal services in general or your firm in particular.

To make this space even more valuable in terms of legal marketing, take the time to compare your ‘About Us’ page to those of your competitors. Pay attention to what they have to say in the four areas you’ve articulated (and if that isn’t clear, smile to yourself). You’ll know you’ve got a successful page when readers can easily determine what sets you apart from all the rest just by reading this and your home page.

Tom Matte is CEO of Max Advertising, and focuses his endless enthusiasm on crafting creative and lasting marketing and advertising for law firms, helping them to ultimately grow their practices. Whether a 10-person firm or one of the Am Law 100, he works with firms of all sizes. Tom blogs at the The Matte Pad, where this post originally appeared on November 28, 2011.

e-Legislative Report: Week Seven, February 27, 2012

The latest Legislative Video Update with Michael Valdez summarizes the Colorado Bar Association’s position on several bills, including Civil Unions, a bill concerning the Dissolution of Marraige, and Electronic Death Certificates.


CBA Legislative Policy Committee

The LPC did not meet on Friday, February 24. However, positions taken by the committee met on February 17 were omitted from last week’s newsletter due to this writer being out on sick-leave so this is an opportune time to catch you up on LPC positions taken. One position was taken on Wednesday, February 15.

SB 12-002 – Civil Unions
The LPC voted by conference call on Wednesday, February 15 to support SB 2 – Concerning Civil Unions. The Wednesday meeting was called because the bill suddenly appeared on the Judiciary Committee calendar late on Monday afternoon. The Civil Rights Committee had asked the LPC to take a formal “no position” on the bill; several sections countered with requests to the LPC to support the bill – with some needed technical corrections amendments. The sections supporting the bill were: Family, Juvenile, Elder, and Business (the Trust and Estate Section has since voted to support the bill). The LPC voted to support the bill but asked the sections to suggest and develop amendments to improve the bill. In a by-the-way note, this position is consistent with the position taken by the CBA Board of Governors in 2006 when the Board voted to support Referendum I – Domestic Partnerships. The bill passed the Judiciary and Finance Committees on February 15 and 16 respectively; the bill sits in the Appropriations Committee waiting to be calendared.

HB 12-1262 – Concerning Updates to UCC Article 9 “Secured Transactions”
At the request of the Business Law Section, the LPC voted to support HB 1262 – Updates to UCC Article 9. The bill contains needed updates to the 2001 statute that was adopted in Colorado. The ad hoc committee of the Business Law Section spent the last 24-months working through the amendments suggested by the National Conference of Commissioners on Uniform State Legislation (NCCUSL). The CBA testified in support of the bill on Thursday, February 23 and the bill passed out of the Judiciary Committee, unamended, on a 10-0 vote, with one excused. The next stop for the bill is the floor of the House on 2nd Reading.

HB 12-1256 – Formula for Maintenance in a Dissolution of Marriage Action
The Family Law Section was granted permission to oppose the legislation at the Capitol but the LPC also allowed the section to approach the sponsor to request the bill be pulled from consideration in this session and that a Task Force work over the summer to try to find a bill that all can agree upon. The sponsor, Rep. Beth McCann, agreed to table for 2012 and to the establishment of a Task Force on the issue that will be spearheaded by the CBA Family Law Section.

HB 12-1041 – Electronic Death Certificates
The Trust and Estate Section asked for permission to support HB 1041 – Concerning Electronic Death Certificates. The bill creates an electronic death registration system to allow persons who report death information to the Office of the State Registrar of Vital Statistics to do so electronically. The bill contemplates an alternative to the current paper based system that relies on the hand delivery of death certificates to required locations. We do not see a direct positive to practitioners but it should help their clients who sometimes have to wait for the paper filings to make their way through the hand delivery process. The bill is headed to the House floor after surviving the Appropriations Committee on Friday, February 24.

Tenth Circuit: Decedent’s Right to Be Free from Forceful Takedown Was Clearly Established; Officer Not Entitled to Qualified Immunity

The Tenth Circuit Court of Appeals published its opinion in Morris v. Noe on Monday, February 27, 2012.

The Tenth Circuit affirmed the district court’s decision. Respondent brought a § 1983 action for unlawful arrest and excessive force on behalf of her deceased husband against Petitioner police officer. She alleges Petitioner violated her husband’s clearly established rights when the officer forceably arrested decedent and caused him injury. Petitioner moved for summary judgment based on qualified immunity, and the district court denied his motion. Petitioner now appeals.

The Court found that the officer “had reason to believe that [decedent] was, at most, a misdemeanant. But [the decedent] posed no threat to [the officer] or others, nor did he resist or flee. Thus, based on the facts assumed by the district court, [the decedent]’s right to be free from a forceful takedown was clearly established,” and Petitioner is not entitled to qualified immunity.

Tenth Circuit: Alleged Hospital Conduct Resulting in Decedent’s Death Was Neither Private Nor Violent; State-Created Danger Theory of Constitutional Liability Not Proper Resolution

The Tenth Circuit Court of Appeals published its opinion in Gray v. University of Colorado Hospital Authority on Monday, February 27, 2012.

The Tenth Circuit affirmed the district court’s decision. Decedent  sought treatment for epilepsy at Respondent hospital.  “In the course of his withdrawal from medication, hospital staff left decedent unattended and he died after suffering a seizure. [Petitioners], decedent’s estate and family members, filed this civil rights suit” and in their complaint they alleged “that [Respondent] hospital, and affiliated doctors, nurses, and staff acting in their capacity as ’employees and/or agents’ of the hospital, deprived decedent of life without due process of law in violation of the Fourteenth Amendment. The district court granted [Respondents]’ motion to dismiss the complaint . . . for failure to state a constitutional claim,”and Petitioners appealed.

The Court concluded that “[t]he Due Process Clause of the Fourteenth Amendment by its plain language applies only to state action: ‘[N]or shall any State deprive any person of life, liberty, or property, without due process of law.’ . . . The state-created danger theory indulges the legal fiction that an act of private violence may deprive the victim of this constitutional guarantee. Before the fiction may operate, however, a state actor must create the danger or render the victim more vulnerable to the danger that occasions the deprivation of life, liberty, or property. The danger that the state actor creates or enhances must be differentiated from the harm that the private party inflicts. . . . Courts simply need not indulge this legal fiction where a state actor, rather than a private individual, is directly responsible for causing the harm. This is because the state actor directly responsible for the deprivation of life, liberty, or property may be held personally liable under § 1983. . . . But not just any private act will suffice. The private act must be a violent one. . . . [D]ue process guarantees historically have applied only to ‘deliberate decisions.'”

“The conduct Petitioners allege to be directly responsible for decedent’s death is neither private nor violent. Accordingly, because the state-created danger theory of constitutional liability has no role to play in a proper resolution of Plaintiffs’ grievance,” the Court affirmed the district court’s decision.

Tenth Circuit: Nationwide Recordkeeping Data Not Relevant to Charges of Individual Disability Discrimination

The Tenth Circuit Court of Appeals published its opinion in EEOC v. Burlington Northern Santa Fe RR on Monday, February 27, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioners filed ADA discrimination charges with the EEOC, alleging discrimination based on a perceived disability after not being hired by Respondent following a conditional offer of employment and a medical screening procedure. Respondent’”s position was that it rescinded the offers based on the medical requirements and safety concerns incident to the . . . position, that it did not view either applicant as “disabled,” and that both applicants were free to apply for other positions within BNSF for which they were qualified.” Later, EEOC enhanced the scope of the investigation and issued a subpoena to Respondent requesting nationwide computer files to search for pattern and practice discrimination. Respondent did not comply with the administrative subpoena, and Petitioner requested the district court enforce it, which it declined to do.

On appeal, the Court found that “[n]othing prevents the EEOC from investigating the charges filed by [Petitioners], and then—if it ascertains some violation warranting a broader investigation—expanding its search. Alternatively, nothing prevents the EEOC from aggregating the information it possesses in the form of a Commissioner’s Charge. . . . But nationwide recordkeeping data is not ‘relevant to’ charges of individual disability discrimination filed by two men who applied for the same type of job in the same state, and the district court did not abuse its discretion in reaching that conclusion.”

Tenth Circuit: Unpublished Opinions, 2/27/12

On Monday, February 27, 2012, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.


United States v. De Loera-Hernandez

McGee v. Rudek

Georgacarakos v. Daniels

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Supreme Court: Division of Employment and Training Not Allowed to Combine Five Separate Accounts’ Tax Rates

The Colorado Supreme Court issued its opinion in Colorado Division of Employment and Training v. Accord Human Resources, Inc. on February 27, 2012.

CRS §8-70-114(1)—Employer Tax Accounts—Assessing Unemployment Taxes—Back Taxes.

The Colorado Division of Employment and Training (Division) sought to reverse the court of appeals’ decision that CRS § 8-70-114(1) does not authorize the Division to collapse five employer accounts, combine their unemployment tax rates, and assess back taxes. The Supreme Court affirmed the court of appeals’ judgment, concluding that nothing in CRS § 8-70-114(1) gives the Division authority to combine separate employer tax accounts into one account for purposes of assessing unemployment taxes. The statute describes circumstances where individuals will be deemed to be employed by a single employing unit for purposes of paying benefits.

Summary and full case available here.

Colorado Supreme Court: Redistricting; Trial Court’s Evaluation of Non-Constitutional Factors Reasonable

The Colorado Supreme Court issued its opinion in Hall v. Moreno on February 27, 2012.

Congressional Redistricting.

The Supreme Court held that the district court adopted a lawful redistricting scheme in accordance with constitutional criteria and that the district court did not abuse its discretion in balancing the non-constitutional factors as set forth in CRS § 16 2-1-102. The Court further held that this balancing was reasonable and supported by the evidence that was heard during the district court’s thorough, inclusive, and nonpartisan proceedings. Accordingly, the Court affirmed the district court’s order that the Colorado Secretary of State implement the adopted redistricting scheme in future congressional elections.

Summary and full case available here.