August 22, 2019

Archives for January 11, 2013

U.S. Supreme Court Denies Review of Veterans’ Benefits Petition

On Monday, January 7, 2013, the Supreme Court of the United States denied a petition for review of a May Ninth Circuit Court of Appeals decision regarding the processing of medical benefits for veterans. The denial by the Court effectively affirms the Ninth Circuit’s decision that the judicial branch lacks authority to decide such appeals.

The case was originally brought by veterans’ advocacy groups in 2007.  After a bench trial in 2008, United States District Judge Samuel Conti concluded that the court did not have jurisdiction over the appeals, citing the Veterans’ Judicial Review Act and noting that the court lacked power to remedy the wrongs against veterans documented by “voluminous” evidentiary submissions to the court. Veterans for Common Sense v. Peake, 563 F. Supp. 2d 1049 (N.D. Ca. 2008). 

A panel of the Ninth Circuit overturned that decision in 2011, ordering that, because of the serious nature of the claims, veterans groups could ask the court to order changes in the system. Veterans for Common Sense v. Shinseki, 644 F.3d 845 (9th Cir. 2011). Upon request for a new hearing before a larger panel, however, that ruling was reversed.

The full panel of the Ninth Circuit determined that it did not have jurisdiction to hear the appeal.

[W]e lack jurisdiction to afford such relief because Congress, in its discretion, has elected to place judicial review of claims related to the provision of veterans’ benefits beyond our reach and within the exclusive purview of the United States Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit. . . . As much as we as citizens are concerned with the plight of veterans seeking the prompt provision of the health care and benefits to which they are entitled by law, as judges we may not exceed our jurisdiction.

Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1016 (9th Cir. 2012). In September, the plaintiff veterans organizations submitted a petition for writ of certiorari to the United States Supreme Court, asking the Court to rule on whether the Veterans Judicial Review Act allows veterans to challenge in federal court the systemic delays in the VA’s provision of mental health care and death and disability compensation. That petition was denied on Monday, January 7, 2013. Plaintiff group Veterans for Common Sense issued a statement in response to the denial, stating in part

We are deeply disappointed the Court did not hear the urgent plea of suicidal Veterans who face delays of months, and often years, seeking VA assistance.  Although significant improvements were made in some areas within VA, such as a suicide hotline set up after our lawsuit that rescued 23,000 distraught Veterans, the nation’s second largest department remains in deep crisis.

The Colorado Bar Association, in conjunction with several bar associations across the state, has established Colorado Lawyers for Colorado Veterans, a service where veterans can meet with an attorney regarding their legal issues free of charge. Attorneys wishing to assist with this program can contact Carolyn Gravit.

Eligibility for VA benefits and appeals processes will be discussed at the January 31, 2013 program, “Fundamentals of Practicing Before the Veterans’ Administration 2013.” This three-hour program will take place at 9 a.m. at the CLE offices. It qualifies for the VA three-hour training requirement for attorneys who wish to represent veterans before the Veterans’ Administration. Attorneys can attend for a significantly reduced rate by taking a pro bono case. Click here for registration information.

CLE Program: Fundamentals of Practicing Before the Veterans’ Administration 2013

This CLE presentation will take place on Thursday, January 31, 2013, at 9:00 a.m. Click here to register for the live program, and click here to register for the webcast.

Can’t make the live program? Click here to order the homestudy.

Tenth Circuit: Continued Terry Stop Violates Fourth Amendment Once Initial Reasonable Suspicion is Dispelled

The Tenth Circuit published its opinion in United States v. De La Cruz on Wednesday, January 10, 2013.

Enrique De La Cruz appealed the denial of his motion to suppress evidence obtained during an investigative seizure. Three Immigration and Customs Enforcement (“ICE”) agents were at a truck wash in Tulsa. They were looking for a man thought to be unlawfully in the United States.  The man purportedly worked at the truck wash. Because the truck wash was closed, there was no one there when the agents arrived. Soon thereafter a car with dark tinted windows drove up to the truck wash to drop off a passenger. The car’s driver was De La Cruz, not the man ICE was looking for, although ICE did not know that at the time. De La Cruz’s brother ran from the car after the ICE agents ordered De La Cruz to get out of the car. After the agents returned with the brother, they figured out De La Cruz was not who they sought but continued to detain him and asked for identification. He gave them a fake ID and they discovered he was in the U.S. illegally and had previously been deported.

In a 2-1 decision, the Tenth Circuit held that although the agents were justified in their initial stop, the duration of De La Cruz’s detention could not be justified by that initial suspicion. Once their reasonable suspicion that he was the person they sought was dispelled, “[e]ven a very brief extension of the detention without consent or reasonable suspicion violates the Fourth Amendment.” The fact that the defendant’s brother ran did not justify the continued seizure because the person who is detained must be suspected of criminal activity.

The court disagreed with the district court’s interpretation of Immigration and Naturalization Service v. Lopez-Mendoza when it held that the defendant’s identification was not suppressible even if the seizure was unlawful. The Tenth Circuit had previously held that “the “identity” language in Lopez-Mendoza refers only to jurisdiction over a defendant and it does not apply to evidentiary issues pertaining to the admissibility of evidence obtained as a result of an illegal arrest and challenged in a criminal proceeding.” Therefore, the court reversed the denial of De La Cruz’s suppression motion,



Tenth Circuit: Employment Discrimination Settlement Agreement Enforceable; Extended Time to File Notice of Appeal Applies When Judgment Not Entered in Separate Document

The Tenth Circuit published its opinion in Walters v. Wal-Mart Stores, Inc. on Tuesday, January 8, 2013.

Bennie Walters brought employment discrimination claims against his former employer, Wal-Mart Stores, Inc. (“Wal-Mart”). The parties reached an apparent settlement during a settlement conference and signed a document entitled “Settlement Terms,” that set forth the key terms of the agreement, indicating a fuller agreement was to be prepared within 20 days. Walters later refused to sign the final agreement. The district court granted Wal-Mart’s motion to enforce the agreement and denied Walters’ motion for reconsideration but did not enter the judgment in a separate document. The court did, however, enter a “Minute Sheet” on the docket, but that unsigned document did not indicate that Wal-Mart’s motion had been granted.

Wal-Mart argued that Walters’ appeal was untimely because it was filed more than 30 days after the minute sheet entry and F.R.A.P. 4(a) requires a notice of appeal be filed within 30 days after a judgment is entered. F.R.C.P. 58(a) requires that a judgment must be set out in a separate document. The Tenth Circuit held that the unsigned minute sheet was not a separate judgment so Walters’ time for appeal was governed by F.R.C.P. 58(c)(2), which gave him 150 days to file a notice of appeal. The denial of Walters’ motion for reconsideration also did not start the clock. When no separate judgment has been entered, “an appellant remains entitled to the extended deadline for filing a notice of appeal even if he files a motion for reconsideration before the judgment is deemed ‘entered’ under F.R.C.P. 58(c).”

Once the court determined it had jurisdiction, it reviewed the district court’s decision to enforce the settlement agreement for abuse of discretion and found none. Under Oklahoma contract law, “[a] party generally may not repudiate a settlement agreement absent fraud, duress, undue influence, or mistake.” The court found no duress. The court also rejected Walters’ claim that he was improperly denied the 21 days to consider the settlement included in the final agreement. The provision was included in order to comply with the Older Workers Benefit Protection Act (“OWBPA”). Because the OWBPA 21-day consideration period for a valid waiver of an age discrimination claim does not apply to settlement of court cases, the agreement was not unenforceable on that basis. Because Walters did not challenge Wal-Mart’s compliance with OWBPA’s requirements that do apply to court cases, he waived that argument. The court affirmed the district court.

Judge David L. Dickinson to Retire from Sixth Judicial District Court Bench

The Sixth Judicial District Nominating Commission will meet on Tuesday, February 26, 2013 to interview and select nominees for appointment to the bench of the Sixth Judicial District Court. The vacancy will be created by the February 28, 2013 retirement of the Honorable David L. Dickinson.

Judge Dickinson was appointed to the district court for the Sixth Judicial District in December 1998. His docket includes civil, criminal, domestic relations, juvenile, and probate cases. Prior to his appointment to the bench, he was in private practice as a solo practitioner specializing in real estate, business and commercial litigation, and local government.

Eligible applicants must be qualified electors of the Sixth Judicial District and must have been admitted to practice law in Colorado for five years. Application forms are available from the ex officio chair of the nominating commission, Justice Alison Eid, and from the office of the district administrator. They are also available on the State Judicial website.

Applications must be submitted to the ex officio chair electronically in PDF format no later than 4 p.m. on Wednesday, February 6. Any person wishing to suggest a nominee must do so by letter submitted to any member of the nominating commission and a copy to the ex officio  chair no later than 4 p.m. on January 30, 2013.

Colorado Court of Appeals: Announcement Sheet, 1/10/13

The Colorado Court of Appeals issued no published opinions and five unpublished opinions on Thursday, January 10, 2013.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.