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TCL > March 2004 Issue > Tenth Circuit Summaries

March 2004       Vol. 33, No. 3       Page  131
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Tenth Circuit Summaries

Summaries of selected opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association by Jenine Jensen and Catherine Campbell, licensed Colorado attorneys. The summaries of the U.S. Court of Appeals for the Tenth Circuit are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.
Full copies of the Tenth Circuit decisions are available on the CBA website at http: // (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.


Speedy Trial Act—Excludable Time—18 U.S.C. § 4247(b)—Mental Competency Examinations

U.S. v. Taylor, No. 03-3036, 12/23/03, D.Kan., Judge Porfilio.

The question on appeal is whether a period of delay for a determination of mental competency is nonexcludable under the Speedy Trial Act’s ("Act") seventy-day clock. The question is one of first impression. The district court denied defendant’s motion to dismiss the indictment against him, holding that the Act does not provide a remedy for a violation of the time limitations for a mental competency examination of 18 U.S.C. § 4247(b). The Act requires that a criminal defendant’s trial begin with seventy days of the filing of the indictment or defendant’s appearance before a judicial officer. There are numerous exceptions to this limit, including any period of delay resulting from a proceeding to determine the defendant’s mental competency. U.S.C. § 4247(b) contains time limitations for a mental examination, but no express remedy for exceeding those limitations. Defendant argues that Congress intended that the time limitations of § 4247(b) modify the Act, thereby triggering the Act’s remedy for a violation.

Other Circuits have rejected this argument. The Tenth Circuit Court of Appeals declines to hold that Congress wanted a violation of § 4247 to carry consequences under the Speedy Trial Act. The district court therefore correctly denied defendant’s motion to dismiss his indictment.

Jurisdiction for Appellate Review of Pretrial Order Under Collateral Order Doctrine of 28 U.S.C. § 1291—Disqualification of Entire U.S. Attorney’s Office

U.S. v. Bolden, No. 02-6249, 12/24/03, W.D.Okla., Chief Judge Tacha.

The district court for the Western District of Oklahoma disqualified the entire office of the U.S. Attorney ("USA") from representing the government on defendant’s motion to compel. The USA’s office appealed the disqualification. The Tenth Circuit Court takes jurisdiction, pursuant to the collateral order doctrine under 28 U.S.C. § 1291, and reverses. Defendant entered into a plea agreement that provided that the government would evaluate defendant’s cooperation in deciding whether a motion for downward departure or reduction of sentence would be appropriate. The Assistant U.S. Attorney ("AUSA") notified defendant’s counsel that the government would not seek a reduction of the sentence. Defendant moved to compel the government to move for reduction of his sentence, alleging bad faith by the government. The district court eventually entered an order disqualifying the entire USA’s office, directing it to arrange for an AUSA from another district to respond to the original motion to compel. This appeal followed.

The first issue is whether the government can immediately appeal this order. This is a question of first impression. The Tenth Circuit Court holds that the USA’s office may immediately appeal. The order conclusively determines that the USA’s office may not represent the government in defendant’s effort to force the government to file a request for a reduction of sentence. On the whole, orders disqualifying an entire USA’s office are separate from the underlying issues. Rarely, if ever, can the Tenth Circuit Court imagine a scenario in which a district court could properly disqualify an entire USA’s office. This appeal raises separation of powers injuries that allow a court to evaluate the order without reaching the issue of prejudice. Finally, an appeal following an adverse ruling on the merits would not effectively vindicate the alleged harm. The Tenth Circuit Court thus has jurisdiction to hear this appeal. On the question of whether the district court erred by disqualifying the entire USA’s office, another question of first impression, the Court reverses the disqualification order. The district court failed to make attorney-specific factual findings and legal conclusions. The order is reversed.

Motion to Dismiss Granted for No Response—District Court Must Evaluate Merits or Conduct Sanctions Analysis

Issa v. Comp USA, No. 03-4024, 12/24/03, D.Utah, Judge Baldock.

Appearing pro se, plaintiff sued his former employer, alleging race discrimination. Employer filed a motion to dismiss, because the complaint was filed more than ninety days after the date on which plaintiff stated he received a right-to-sue letter from the EEOC. Plaintiff did not file a response, so the district court granted the motion pursuant to the local rule that provides that a motion may be granted for lack of a timely response. The district court did not address the merits of the motion or analyze whether dismissal was appropriate as a sanction.

The Tenth Circuit Court holds that, before granting a motion to dismiss for failure to state a claim, a district court must examine the allegations in the complaint to determine whether the plaintiff has stated a claim, even if the plaintiff did not respond to the motion. Alternatively, the district court may dismiss the complaint as a sanction for failing to follow court rules, but it must first perform an explicit analysis of the appropriate factors.

The Tenth Circuit Court evaluates whether it could resolve the question of law presented by the legal sufficiency of the complaint. Attached to the complaint were documents indicating that the right-to-sue letter had been mailed to the wrong address, supporting plaintiff’s claim that he filed his complaint shortly after he received the letter. Under the circumstances, the matter was remanded for the district court to address the merits of the motion to dismiss and whether it would be futile to permit plaintiff to amend his complaint. The district court’s judgment is reversed and remanded.

Employment Discrimination and Retaliation—Jury Award—Front Pay—Appellate Attorney Fees—Injunction Against Retaliation

Abuan v. Level 3 Communications, Inc., Nos. 01-1471, 02-1015 & 02-1029, 12/30/03, D.Colo., Judge Seymour.

Plaintiff sued his employer for race and age discrimination and retaliation. A jury found in his favor and awarded him back pay, along with compensatory and punitive damages. The district court reduced those amounts, and awarded front pay, because after trial plaintiff was laid off.

The Tenth Circuit Court reviews the trial evidence in light of employer’s claims of error and concludes that the evidence was sufficient to support the verdict and that a new trial was not warranted. Turning to the issue of front pay, the Tenth Circuit Court holds that although reinstatement is the preferred remedy, front pay is appropriate in cases in which reinstatement is not viable because of continuing hostility between the plaintiff and the employer or because of psychological damages caused by the discrimination. Front pay is designed to make the plaintiff whole, without granting him a windfall.

Here, the district court did not abuse its considerable discretion in concluding that reinstatement was not feasible and in awarding front pay. The hostility and animosity between the parties was evident from the record. Further, the fact that employer had offered plaintiff a different job did not foreclose the front-pay award. Adopting this argument would force a successful plaintiff to choose between an untenable job situation and the remedy that would make him whole. The amount of the front-pay award was improperly calculated, however, because it was based on plaintiff’s final salary amount and did not reflect the effects of employer’s illegal conduct on his failure to receive promotions. The case is remanded for further proceedings on the amount of front pay, with directions to award plaintiff reasonable attorney fees as the prevailing party on appeal. Finally, the Tenth Circuit Court declines to disturb the district court’s order enjoining employer from retaliating against any of the witnesses who testified at trial. The district court’s judgment is affirmed in part, reversed in part, and remanded.

Use and Carrying of a Firearm During a Crime of Violence Under 18 U.S.C. § 924(c)—Mandatory Ten-Year Consecutive Sentence for Discharge of Firearm—Accidental Discharge

U.S. v. Nava-Sotelo, No. 02-2338, 12/31/03, D.N.M., Judge O’Brien.

Defendant was convicted of the use and carrying of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). The issue on appeal is whether a mandatory ten-year consecutive sentence for discharge of a firearm must be imposed if the discharge was accidental. The district court held that it did not. The case arises from defendant’s attempt to help his brother escape from a prison transport van. During the incident, a struggle occurred between defendant and a prison officer, and the firearm discharged into the ground. At the time, defendant’s finger was on the trigger. Defendant was charged with two counts of kidnapping a U.S. officer while in the performance of official duties; two counts of assault on an officer or employee of the United States while performing official duties; one count of possession, use, or discharge of a firearm during a crime of violence; and one count of instigating or assisting the escape of a federal inmate. He pled guilty to all six counts. The issue raised by the government on appeal is whether the district court erred in imposing a seven-year consecutive sentence on the firearm charge rather than a ten-year sentence.

The Tenth Circuit Court reverses, holding that the language of § 924(c) plainly requires the court to impose the ten-year consecutive sentence, regardless of whether the discharge of the firearm was intentional or accidental. The parties agree that the discharge was accidental, even involuntary. However, because the brandishing and discharge provisions of § 924(c) are sentencing factors, not elements, the government was not required to show that defendant knowingly or intentionally discharged his weapon. The mere fact that the weapon discharged is controlling. The district court erred. The Tenth Circuit Court reverses and remands for resentencing.

Mootness—Appeal of Preliminary Injunction—Appeal Dismissed—Panel Decision Vacated—District Court’s Injunction Not Vacated

Rio Grande Silvery Minnow v. Keys, Nos. 02-2254, 02-2255, 02-2267, 02-2295 & 02-2304, 1/5/04, D.N.M., Judge Porfilio.

A panel of the Tenth Circuit Court issued a decision in the appeal of a preliminary injunction pertaining to the water flow of the Rio Grande to preserve the habitat of the endangered silvery minnow. In subsequent proceedings for rehearing en banc, the parties suggested that the appeal was mooted by events occurring after the panel decision was entered. All provisions of the injunction had been met or were never invoked. The Tenth Circuit Court determines that the appeal was moot because it could not afford any relief by affirming or reversing the injunction on en banc review. Accordingly, the appeal is moot and would be dismissed.

The next question is whether to vacate the panel decision. In considering the equities, the Tenth Circuit Court concludes that the factors causing the appeal’s mootness—favorable climatic conditions, Congressional action, and the passage of time—were not caused by any of the parties. The Court also considers the public interest in not disturbing the orderly operation of the judicial system. Because the plaintiffs had nothing to gain from perpetuation of the panel decision, the public interest favored defendants, as did the remaining equities. The panel decision would be vacated, but the district court’s underlying injunction order would not, because dismissal of the appeal was sufficient. The panel decision is vacated and the appeal is dismissed.

Definition of "Machine Gun"—Constructive Amendment of Indictment—Jurors Reciting Pledge of Allegiance—Right to Fair Trial

U.S. v. Wonschik, No. 02-1276, 1/6/04, D.Colo., Judge McConnell.

Defendant appeals his conviction of transferring or possessing a machine gun, and the judge’s recitation of the Pledge of Allegiance with the jury. He argues that the jury instruction, which defined "machine gun" as the term is defined in the National Firearms Act, 26 U.S.C. § 5845(b), constructively amended the indictment for possessing "parts from which a machine gun could be assembled." He also argues that he was denied a fair trial when the judge led jurors in reciting the Pledge of Allegiance during voir dire.

Defendant was indicted on one count of illegal possession of a machine gun, in violation of 18 U.S.C. § 922(o), for possessing a combination of parts from which a machine gun could be assembled. His defense at trial was that his weapon, as assembled by the government expert, was not "automatic," and therefore was not a machine gun, and that the government could not prove that he knew that his combination of parts could be assembled into a functioning machine gun. The jury was instructed that the government must prove that defendant knew that the relevant parts constituted a combination of parts from which a machine gun can be assembled. When voir dire began, the judge had the potential jurors recite the Pledge of Allegiance with him.

The Tenth Circuit Court affirms. On the first issue, the dispute is over how to define the term "machine gun" as it refers to the result of assembling the parts. There is a confusing circularity to the treatment of machine gun in § 5845(b), but the phrase "a combination of parts from which a machine gun can be assembled" actually means "a combination of parts from which [any weapon that shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger] can be assembled." This is the definition given in the instruction, so there is no error. Regarding the Pledge of Allegiance, the court’s action did not deny defendant his right to a fair trial. The judgment is affirmed.

Americans with Disabilities Act—Physical Presence at Job—Essential Function—Reasonable Accommodation

Mason v. Avaya Communications, Inc., No. 03-6035, 1/13/04, W.D.Okla., Judge Baldock.

Plaintiff sued her former employer, claiming it had violated the Americans with Disabilities Act ("ADA") by failing to accommodate her post-traumatic stress disorder and permit her to work from home. Employer had terminated plaintiff’s employment because she would not return to work. The district court granted summary judgment in favor of employer.

Employer conceded that plaintiff was disabled within the meaning of the ADA, so the Tenth Circuit Court proceeds to the question of whether plaintiff met her burden of showing she was qualified, with or without reasonable accommodation, to perform the essential functions of the job. Central to this inquiry was whether her request to work from home was a reasonable accommodation. Employer demonstrated that the job required physical attendance for supervision and teamwork. The Tenth Circuit Court holds that the ADA does not obligate an employer to change the essential functions of a job to accommodate a disabled employee. In addition, the court will not second-guess an employer’s judgment about a job description, if it is job-related, uniformly enforced, and consistent with business necessity. Here, plaintiff’s request to work at home was unreasonable as a matter of law, because it sought to eliminate an essential function of the job. Therefore, summary judgment in employer’s favor was appropriate. The judgment is affirmed.

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