July 19, 2018

Archives for August 4, 2014

New C.J.E.A.B. Opinion States Judges Cannot Ethically Use Marijuana

On Thursday, July 31, 2014, the Colorado State Judicial Branch released Colorado Judicial Ethics Advisory Board (C.J.E.A.B.) Opinion 2014-01, advising Colorado judges that because marijuana is still illegal under federal laws, any use of marijuana violates Rule 1.1 of the Canon of Judicial Conduct.

The C.J.E.A.B. consists of judges and non-judges who provide advice on ethical issues to judicial officers who request an opinion. Any judicial officer in Colorado may request an opinion from the Board. Once the request is received, the C.J.E.A.B. will consider whether to research the question and issue an opinion regarding the propriety of the proposed conduct and the ethical issues presented.

The question raised in Opinion 2014-01 was whether a judge may use marijuana privately and in a manner consistent with the Colorado Constitution in light of the legalization of marijuana in Colorado. The C.J.E.A.B. decided that because marijuana is still illegal under federal law, using marijuana even in a manner consistent with Colorado law is more than a minor violation of the law and constitutes a violation of Rule 1.1 of the Canon of Judicial Conduct. The C.J.E.A.B. decided that virtually every violation of Colorado law is a violation of the CJC, because the exceptions delineated by the committee that crafted the CJCs were extremely minor, such as parking tickets. Further, because drug- and alcohol-related offenses were specifically mentioned as not falling under the exception, the C.J.E.A.B. determined that a judge’s use of marijuana is not a minor violation of law.

Click here for the full text of Opinion 2014-01 and click here for all of the C.J.E.A.B. opinions.

Tenth Circuit: No Abuse of ATF Authority to Issue Demand Letter Designed at Combatting Gun Trafficking

The Tenth Circuit Court of Appeals issued its opinion in Ron Peterson Firearms, LLC v. Jones on Monday, July 28, 2014.

The Federal Bureau of Alcohol, Tobacco, Firearms, & Explosives issued demand letters to certain federal firearms licensees (FFLs) in California, Arizona, New Mexico, and Texas in an effort to reduce gun trafficking to Mexico. The demand letters required the FFLs to report to ATF when making sales to the same customer within five business days of two or more semiautomatic rifles “capable of accepting a detachable magazine and with a caliber greater than .22.” Three FFLs—Ron Peterson Firearms, LLC (Peterson), Dale Rutherford d/b/a The Cop Shop (Rutherford), and Tracy Rifle and Pistol, Inc. (Tracy)—appealed the demand letter, arguing that the ATF lacked authority to issue the demand letter and the decision to target FFLs along the four border states was arbitrary and capricious.

The Tenth Circuit, in accord with the Fifth and DC Circuits and the district court in this case, decided that the ATF neither exceeded its statutory authority or acted arbitrarily and capriciously in issuing the demand letter.

The ATF issued the letter in response to “Project Gunrunner,” a national initiative to combat firearms trafficking across the Mexican border. Project Gunrunner uncovered that although Mexican cartels traditionally preferred smaller model weapons, recently rifles and other long guns were being uncovered in raids. These weapons had not previously been tracked by the ATF with multiple-purchase tracing. In December 2010, the ATF announced a proposed reporting requirement regarding multiple purchases of long guns. It received over 12,000 comments during the comment period.

In July 2011, the ATF issued a demand letter to dealer and pawnbroker FFLs in the four border states. Letter recipients are required to report to the ATF whenever they sell two or more semi-automatic rifles within five business days to an unlicensed person. The reports must be submitted on an ATF form that includes information about the purchaser, the dates and locations of purchase, and certain characteristics of the firearms. Peterson, Rutherford, and Tracy are recipients of the July 2011 demand letter. They filed separate suits against the ATF’s acting director in his official capacity, challenging his authority under the Administrative Procedure Act, which suits were consolidated by the district court. The parties filed cross-motions for summary judgment. The district court granted the ATF’s motion for summary judgment and denied the plaintiffs’ motions. The plaintiffs appealed to the Tenth Circuit.

The plaintiff FFLs contended that the ATF lacked statutory authority to issue the July 2o11 demand letter, arguing that the demand letter runs afoul of several provisions of the Gun Control Act, as well as the Consolidated and Further Continuing Appropriations Act. The FFLs asserted that because the demand letter required them to submit information it was not already required to collect, the ATF exceeded its statutory authority. The Tenth Circuit disagreed, stating that the statute “unambiguously authorizes the demand letter.” The Tenth Circuit noted that the demand letter requested FFLs to submit information they are legally obliged to maintain. The FFLs also contend that the letter is invalid because FFLs cannot determine which transactions they are required to report. The Tenth Circuit rejected this argument, quoting from a sister case that “Appellants’ assertion belies reality.” Moreover, the ATF provided a website and phone number to help clarify which transactions were required to be reported.

FFLs also argue that the demand letter requires them to keep records “in a manner inconsistent with the regulations,” but the Tenth Circuit disagreed. Before the ATF issued the July 2011 demand letter, FFLs were already required to keep records of similar sales of different types of firearms. The July 2011 letter simply expanded that obligation to include long guns of the types recently preferred by Mexican cartels.

The FFLs also argue that the ATF exceeded its authority under § 923 by exceeding the authority granted to them by Congress. The Tenth Circuit, agreeing with the Fifth and DC Circuits, rejected these arguments. The arguments erroneously conflate two unrelated statutory sections, and nothing in the statute expressly forbids the ATF’s demand letter.

FFLs argue as well that the CGA limits the ATF’s authority because it limits the promulgation of any rule or regulation after the date of the Firearm Owners’ Protection Act. However, the demand letter is not a rule or regulation. Further, § 923 was enacted as part of the Firearm Owners’ Protection Act.

Rutherford and Tracy argue that even if the ATF’s demand letter was supported by statute, its action was arbitrary and capricious, and that there is no rational connection between the 2011 demand letter and gun trafficking across the Mexican border. The Tenth Circuit remarked that this argument fails to recognize ample evidence in the record of a “rational connection” between the information the ATF seeks and the gun trafficking. Further, the Tenth Circuit noted that agencies are not required to consider every alternative proposed but rather must consider only the most significant and viable alternatives. The Tenth Circuit found no arbitrariness or caprice in the ATF’s demand letter.

Finally, Peterson argued that the court should have excluded portions of the administrative record containing data from traces of firearms seized by Mexican law enforcement. The Tenth Circuit reminded Peterson that review of an agency decision is generally based on the full administrative record, and rejected Peterson’s argument.

The judgment of the district court was affirmed.

Tenth Circuit: Discrimination Claims Time-Barred Under Federal Employee 45-Day EEO Charge Time Limit

The Tenth Circuit Court of Appeals issued its opinion in Green v. Donahoe on Monday, July 28, 2014.

Marvin Green worked for the postal service since 1973 and was the postmaster for Englewood, Colorado, from 2002 until his termination in 2010. At the time of the events leading to his termination, he had no disciplinary report in his permanent file. In early 2008, a postmaster position opened in Boulder, and Green applied for the position. He was not hired, and filed a complaint of racial discrimination with the Postal Service’s EEO Office. He requested a hearing with the EEOC and the matter eventually was settled.

In May 2009, Green filed an informal EEO charge alleging that his supervisor, Christ, had begun retaliating against him for his prior complaint of discrimination, saying that the supervisor intimidated, threatened, and harassed him. He filed a similar charge in July of that year, adding his new supervisor, Smith. The EEO Office informed Green that he could file a formal charge, but he did not do so.

In November 2009, Green received a letter from Charmaine Ehrenshaft, who was the Postal Service’s Manager of Labor Relations for his district, requiring him to appear for investigation of allegations of non-compliance regarding Green’s purported mishandling of the grievance procedure between April and December 2009, resulting in many adverse decisions against the Postal Service. Ehrenshaft and her supervisor, Knight, conducted the formal interview on December 11, 2009. Green was represented by Robert Podio of the National Association of Postmasters. Green was interrogated regarding processing of grievances, allegations that he had intentionally delayed the mail, and allegations of sexual harassment. After Ehrenshaft and Knight concluded their interview, Green was questioned by the Office of the Inspector General regarding federal mail fraud liability for intentionally delaying the mail.

After the OIG’s interview, Knight and Ehrenshaft reappeared and gave Green a letter informing him that he was placed on off-duty status immediately without pay due to the allegations. Unbeknownst to Green, after the interview, the OIG concluded that he had not engaged in wrongdoing. Podio began negotiating  with Knight to resolve the matter, and Knight insinuated that Green would be federally charged for delaying the mail. Green signed a settlement agreement, providing that he would give up his position as Englewood postmaster and would have until March 2010 to decide if he would retire or take a lesser position as postmaster in Wamsutter, Wyoming, for significantly less pay.

On January 7, 2010, Green met with an EEO counselor and filed an informal charge alleging retaliation regarding the December 11 interview. He filed the formal charge on February 17. The EEO Office dismissed the complaint because he had entered into a settlement agreement. On February 9, Green submitted retirement papers, effective March 31, 2010. On March 22, he initiated EEO counseling, alleging constructive discharge for his forced retirement. He followed up with another formal charge on April 23. The EEO Office accepted his charge on three grounds: (1) he was constructively discharged; (2) he was downgraded from a level 22 postmaster to a level 13 postmaster; and (3) his pay-for-performance salary increase was stopped. Green’s attorney advised the EEO Office to pursue only the first claim because the other two claims had been dismissed with the February 17 charge.

In September 2010, Green filed his complaint in this lawsuit. He amended his complaint in July 2011 to add five retaliatory acts in violation of Title VII: (1) the letter notifying him of the investigatory interview; (2) the investigatory interview; (3) the threat of criminal prosecution; (4) his constructive discharge; and (5) the emergency placement to Wyoming. The district court dismissed his first three claims for lack of subject matter jurisdiction. The district court later found that Ehrenshaft had in bad faith destroyed records and as a sanction would inform the jury that it could infer pretext from the destruction. However, in February 2013, the district court granted summary judgment to defendants on the remaining charges, ruling that Green’s emergency placement was not an adverse action and his constructive discharge claim was time-barred. Green appealed.

The Tenth Circuit first looked at the different rules for Title VII complaints for federal employees, noting that employees have 45 days within which to contact an EEO officer within their agency, as opposed to the 180 days given to private sector employees to file a charge of discrimination. Employees must exhaust all administrative remedies before filing a formal complaint.

Green did not submit an EEO charge regarding his first three complaints until April 23, 2010. The basis of these complaints was the December 11, 2009 interview and investigation, so April 23 was well beyond the 45-day deadline. As for the constructive discharge claim, Green alleged that the 45 days did not begin until he decided whether to retire or move to Wyoming. However, the Tenth Circuit determined that the adverse employment action occurred in December 2009, so this claim was also time-barred.

The Tenth Circuit then turned to the emergency placement claim. The district court had determined that Green could not prove the emergency placement was materially adverse. The Tenth Circuit disagreed. Green had not known that the federal investigators decided not to charge him, and did not know he would be paid when he agreed to the settlement agreement. This was enough to constitute a materially adverse employment action.

The Tenth Circuit affirmed the district court’s dismissal of the charges based on the investigative interview, the letter, the threat of criminal charges, and the constructive discharge. The Tenth Circuit reversed the district court’s judgment on the emergency placement claim, remanding for further proceedings.