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TCL > May 2005 Issue > Tenth Circuit Summaries

May 2005       Vol. 34, No. 5       Page  141
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 accessible from the CBA website, http: // (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.

Search Warrant—Probable Cause—Good Faith Exception—Minimal Nexus

U. S. v. Gonzales, No. 04-2126, 3/1/05, D.N.M., Judge Kelly.

The government appeals the district court’s grant of defendant’s motion to suppress evidence obtained from his home pursuant to a search warrant. Defendant’s argument in the district court was that the warrant was not supported by probable cause, and the deficiency was such that the warrant could not be relied on in good faith.

The district court found that there was not probable cause, because the affidavit did not set forth evidence linking defendant’s home with suspected criminal activity. The court also held that the good faith exception did not apply because the magistrate was misled by the officer’s failure to state in the affidavit that defendant did not own the vehicle he was driving. Too, the affidavit was so lacking that any official belief that probable cause existed was unreasonable. The government appealed.

The Tenth Circuit Court affirms. The government concedes that the warrant lacked probable cause. It argues, however, that the good faith exception in United States v. Leon, 468 U.S. 897 (1984), applies. The Circuit holds that where, as here, the underlying documents are "devoid of factual support," an officer cannot be said to have relied on them in good faith. There is not a showing of a minimal nexus between the place to be searched and the suspected criminal activity. The affidavit and warrant are so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The order is affirmed.

Lack of Appellate Jurisdiction—Interlocutory Appeal—Collateral Order Doctrine—Qualified Immunity—Evidence Sufficiency

Gray v. Baker, No. 04-7005, 3/1/05, E.D.Okla., Judge Briscoe.

Plaintiff was employed at a state college. Her employment contract required cause for termination. After she was terminated due to poor work performance, she requested a hearing. The record is unclear as to whether she abandoned this request. She sued her supervisors, claiming that the defendants violated her due process rights and her rights under the Family and Medical Leave Act ("FMLA").

Defendants moved for summary judgment, arguing that they could not be sued individually under the FMLA, so they were entitled to qualified immunity. The district court denied the motion, holding that defendants could be sued as individuals under the FMLA, and that conflicting evidence on whether they had acted reasonably precluded summary judgment on qualified immunity. Defendants filed this interlocutory appeal.

The Tenth Circuit Court holds that because the order appealed from was not a final decision, there was no appellate jurisdiction unless it fell within the collateral order doctrine. Under that doctrine, jurisdiction is established if the order conclusively determined a disputed question, resolved an important issue separate from the merits, and is unreviewable after final judgment.

The Tenth Circuit concludes that defendants’ challenge to FMLA jurisdiction could be reviewed on appeal from a final judgment. In addition, the qualified immunity claim was not based on good-faith acts, but instead was based on defendants’ claim that it was not clearly established that they could be sued as individuals under the FMLA. The Tenth Circuit therefore holds that this claim was one of statutory construction that could be reviewed on appeal.

The Tenth Circuit finds that it did not have jurisdiction over the district court’s determination that plaintiff’s evidence of her request for a post-termination hearing was sufficient to defeat summary judgment. The appeal is dismissed.

Failure to Prosecute Appeal—Sua Sponte Dismissal—Damages for Frivolous Appeal

United States ex rel. Jimenez v. Health Net, Inc., Nos. 03-1424 & 03-1443, 3/11/05, D.Colo., Judge Henry.

Appellants failed to comply with court rules for appellate briefing due dates, brief format, and appendices. They failed to inform their attorney and the court of their current addresses. Their attorney was granted leave to withdraw. The Tenth Circuit Court then issued an order directing the appellants to file written notices, giving their current addresses and telephone numbers. When they failed to comply, the court dismissed the appeal sua sponte.

The Circuit notes that on the merits, the result was obvious and the appellate arguments were without merit. Consequently, appellants are ordered to show cause why the Court should not impose damages of $1,000 against each of them for filing a frivolous appeal. The appeal is dismissed.

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