July 18, 2019

Archives for August 7, 2012

Finalists Selected to Fill Judgeship on Eighteenth Judicial District Court

The Eighteenth Judicial District Nominating Commission has nominated three candidates for a district court judgeship created by the resignation of the Honorable Valeria Spencer, effective August 10, 2012.

The nominees for the bench are M. Paula Ashen of Centennial, Stephen Hensen of Littleton, and Theresa Slade of Elizabeth. All were selected by the commission on August 6.

Under the Colorado Constitution, Governor Hickenlooper has until August 22 to appoint one of the nominees as District Court Judge for the Eighteenth Judicial District, which covers Arapahoe, Douglas, Elbert, and Lincoln counties.

Comments regarding any of the nominees may be sent via e-mail to the governor at judicial.appointments@state.co.us.

Tenth Circuit: Firing Was Not Retaliation for Bringing to Light Various Accounting Improprieties

The Tenth Circuit Court of Appeals published its opinion in McBride v. Peak Wellness Center, Inc. on Monday, August 6, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner is an accountant who worked as Respondent’s business manager for about nine years. Respondent terminated her in 2009, citing job performance and morale issues. Petitioner, however, claims she was terminated in retaliation for bringing various accounting improprieties to the attention of Respondent’s Board of Directors. Petitioner brought several federal and state-law claims against Respondent, among them (1) whistleblower retaliation under the federal False Claims Act (FCA); (2) violations of the federal Fair Labor Standards Act (FLSA); (3) breach of employment contract; (4) breach of implied covenant of good faith and fair dealing; (5) defamation; and (6) a federal sex discrimination claim under Title VII of the Civil Rights Act. After discovery, Respondent moved for summary judgment on all claims, and the district court granted the motion. Petitioner appeals the grant of summary judgment, arguing that significant issues of material fact remain unresolved and that her claims should proceed to trial. She also appeals the district court’s denial of an evidentiary motion. The Court found no error in the district court’s decision and affirmed.

Tenth Circuit: FCC Denial of Petition for Regulatory Forbearance Pertaining to Telecommunications Services Was Reasoned and Reasonable

The Tenth Circuit Court of Appeals published its opinion in Qwest Corp. v. FCC on Monday, August 6, 2012.

The Tenth Circuit denied the petition for review. Petitioner  sought “review of an order of the Federal Communications Commission (FCC) denying Petitioner’s petition for regulatory forbearance pursuant to 47 U.S.C. § 160(a). Petitioner filed a petition with the FCC in March 2009 seeking relief from certain regulations pertaining to telecommunications services that it provides in the Phoenix, Arizona, metropolitan statistical area (MSA). The FCC denied the petition, citing insufficient evidence of sufficiently robust competition that would preclude Petitioner from raising prices, unreasonably discriminating, and harming consumers. Petitioner challenges the FCC’s decision only as it pertains to Petitioner’s mass-market retail services in the Phoenix MSA. The Court denied the petition, finding that the Phoenix Order was a reasoned and reasonable decision.

Tenth Circuit: EPA SIP Call Not Arbitrary and Capricious; Utah SIP Substantially Inadequate by Allowing Avoidance of Enforcement Actions

The Tenth Circuit Court of Appeals published its opinion in US Magnesium, LLC v. EPA on Monday, August 6, 2012.

The Tenth Circuit denied the petition for review. Petitioner sought review of a recent final rule from the United States Environmental Protection Agency (EPA). “In its rule, the EPA has called for Utah to revise its State Implementation Plan (SIP) for the federal Clean Air Act (CAA). Under the CAA, the EPA may call for a state to revise its SIP (a SIP Call) if the EPA finds the state’s current SIP substantially inadequate. Here, the EPA determined that Utah’s SIP was substantially inadequate because it contains an Unavoidable Breakdown Rule (UBR), which permits operators of CAA-regulated facilities to avoid enforcement actions when they suffer an unexpected and unavoidable equipment malfunction. In this SIP Call, published as a final rule in April 2011, the EPA requested that Utah promulgate a new UBR—one that conforms with the EPA’s interpretation of the CAA.” Petitioner maintains that the SIP Call is arbitrary and capricious and requested that the Tenth Circuit vacate it, however the Court denied their petition for review of the SIP Call.

Tenth Circuit: Unpublished Opinions, 8/6/12

On Monday, August 6, 2012, the Tenth Circuit Court of Appeals issued three published opinions and six unpublished opinions.

United States v. Gehringer

Dalcour v. City of Lakewood

United States v. Briggs

Burk v. Astrue

Campo-Perez v. Holder, Jr.

Maixner v. Rudek

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