July 18, 2019

Archives for September 5, 2013

Running Past Our Limits Update (Part 6): Mercy

rhodesLast summer I wrote a series on lessons we all can learn from marathon training. (You can find it in the archives.) This series responds to requests for an update.

I sometimes lose track of why I’m training. It’s not about going farther and faster on a machine, or even about actually running a marathon. It’s about reclaiming full health, in body and soul. That’s the real goal; everything else is just modality.

Every creative endeavor – business, artistic, athletic, or otherwise – has times when it shifts and drifts, goes where we didn’t plan, sometimes in alluring new directions. Then what? Do we reaffirm the original goal and stick with the plan, or follow the new direction to a new goal?

People sometimes suggest experimental drugs they’ve heard about, or theorize about mechanical gizmos that might help. Or they suggest biking or swimming instead of running. Nothing wrong with the ideas in theory (even if they would require a whole new training regime!), and if they held out a clear path to healing, I’d consider them. But so far they haven’t. Instead, they’ve only offered a form of dependency that full healing would make unnecessary. I don’t want a drug or a device to move me; I want to do the work myself.

Maybe it looks like I’m crazy or stubborn, but something inside tells me that, if I adopted a new goal and modality, my soul would suffer. I’d give my power away; my heartfelt project would become someone else’s. Never mind that their terms might produce success as they define it, I’d hurt my soul if I went there. Sorry, just can’t.

It’s a tough issue. Ultimately, I find guidance in the concept of mercy. I don’t mean shallow “mercy rules” like everybody who shows up gets a ribbon whether they win or lose, or if the score gets too lopsided you don’t have to finish the game. Those things are false mercy – bogus consolation prizes that don’t satisfy. Cheap mercy leaves a bad taste – not just in our mouths but in our spirits. We lost badly and we know it. A ribbon won’t change that.

Genuine mercy offers a balm to our pain. Whether we stay in the game or not, mercy invites us to create and keep creating the same way we did at first, only now our vision is clearer, we’re in touch with our essence and value and purpose like we weren’t before. Whether we stay the course or try a new one isn’t the point; that we can go either way with our souls intact is what matters.

Maybe mercy reveals that we didn’t really want what we said we wanted after all, that we didn’t fully know our hearts’ desires when we started, and now the pressures and obstacles have revealed a deeper and more abiding truth about what we’re after. Once we know that, there’s no point staying with what would become pointless suffering. We’re not quitting, we’re accepting an invitation to a more deeply satisfying outcome. Quitting and mercy feel different, and we know the difference. Quitting mocks us because we’ve painted ourselves into a corner; mercy blows the roof off and shows us the stars. Quitting says it’s over; mercy signals a beginning. Quitting fills us with regret; mercy stuns us with relief.

We reach the place of mercy when we pass the point of no return. Quitting can’t undo what we’ve done, it can only make us regret we ever got this far. Mercy can’t undo it either, but it doesn’t want to. It doesn’t call us back to what we so desperately wanted to leave behind, it invites us forward to what we really wanted in the first place. When we’re in the place of mercy, it’s not time to quit, it’s time to begin.

That’s where I’ll end this update. All the denial, finding my placebo, the gift of a new training machine, the hold ‘em or fold ‘em crisis, and all the rest come down to just this one amazing, liberating truth:  mercy, inviting me forward to new health, which is still what I’m after. Stay tuned.

Kevin Rhodes is a lawyer in private practice who’s on a mission to help people love their work and their lives. He leads workshops for a variety of audiences, including the CBA’s Solo and Small Firm Section and the Job Search and Career Transitions Support Group. You can email Kevin at kevin@rhodeslaw.com.

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: Unpublished Opinions, 9/5/13

On Thursday, September 5, 2013, the Tenth Circuit Court of Appeals issued two published opinions and thirteen unpublished opinions.

Hunt v. Riverside Transportation

Holt v. McBride

United States v. Bussie

Brown v. Cozza-Rhodes

United States v. Lee

Armstrong v. Sebelius

Buck v. CF&I Steel

United States v. Rickett

United States v. Cardoza-Sarabia

United States v. Zapata-Reye

United States v. Cudjoe

Manning v. State of Kansas

Tiedemann v. Bigelow

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