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TCL > April 2006 Issue > Tenth Circuit Summaries

April 2006       Vol. 35, No. 4       Page  165
From the Courts

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).

Habeas Corpus Proceeding Clemency Proceeding—21 U.S.C. § 848(q)(4)(B)—State Clemency

Hain v. Mullin, No. 05-5039, 01/23/2006, N.D.Okla., Judge Lucero.

The Tenth Circuit Court of Appeals granted initial en banc hearing to consider the scope of 21 U.S.C. § 848(q)(4)(B), which provides federally funded counsel for indigent state death row prisoners who are seeking federal habeas relief. The district court denied payment to defendant’s attorneys, ruling that the statute does not authorize federal funding for state clemency representation.

The statute 28 U.S.C. § 2254 authorizes the appointment of one or more attorneys and the furnishing of "other services." Another section of the statute provides that each appointed attorney shall represent the defendant through every subsequent stage of available judicial proceedings, including proceedings for executive or other clemency as may be available to defendant.

The Circuit reversed the district court’s judgment. The Court holds that counsel appointed under § 848(q)(4)(B) to represent state death row inmates in state habeas corpus proceedings are authorized by the statute to represent those clients in state clemency proceedings, and are entitled to compensation for clemency representation. There is no indication in the statute that it is limited to federal proceedings. The judgment was reversed.

Dismissal Without Prejudice—Jurisdiction—Standing—Leave to Amend Complaint

Brereton v. Bountiful City Corp., No. 05-4067, 01/26/2006, D.Utah, Judge Porfilio.

Plaintiff sued defendant Bountiful City, Utah, challenging a parking ordinance. He had not been ticketed, but he feared he would be. He filed suit, asserting that the ordinance violated the First Amendment and the Utah Constitution. The district court held that plaintiff lacked standing, and dismissed the action with prejudice. The court then denied plaintiff’s request to file an amended complaint. Plaintiff appealed, claiming that the dismissal should have been without prejudice.

The Tenth Circuit Court held that where an action is dismissed for lack of jurisdiction, the dismissal must be without prejudice. Because standing is a jurisdictional mandate, a dismissal for lack of standing must be without prejudice. The Circuit noted that even a dismissal without prejudice will have a preclusive effect on the standing issue in a future action; however, the preclusive effect is one of issue preclusion (collateral estoppel) rather than claim preclusion (res judicata).

The Tenth Circuit also addressed the district court’s order denying leave to amend the complaint on the ground that amendment would be futile. Even though amendment would be futile because plaintiff could not adequately allege standing, dismissal still should be without prejudice. The district court’s judgment of dismissal was affirmed, but the case was remanded to modify the dismissal to be without prejudice.

Upward Departure—Double-Counting—Explanation of Degree of Departure

U.S. v. Wolfe, No. 04-2114, 01/31/2006, D.N.M., Judge Ebel.

Defendant appealed her sentence, challenging the court’s decision to depart upward from the then-mandatory sentencing guideline range. The case arose from a drunk-driving accident in which defendant was driving and people were killed. She pled guilty to involuntary manslaughter, and the plea agreement provided that the government could move for an upward departure at sentencing. The sentencing range was twelve to eighteen months, and the district court departed upward based on excessive recklessness, creation of a serious threat to the public welfare. The Court determined the defendant’s conduct fell "halfway between the recklessness found in the heartland of involuntary manslaughter" and the guideline for second-degree murder. The adjusted offense level of thirteen was increased by nine, to twenty-two. Defendant appealed her sentence.

The Tenth Circuit Court reversed, holding that the district court misapplied the guidelines to justify its decision to depart upward. The factors of whether defendant was excessively reckless by driving more than 100 miles per hour and removed her hands from the steering wheel were permissible factors. However, the Presentence Report contained two contradictory statements involving the speed at which defendant was driving; on remand, the court may be able to reconcile these statements.

If the court again determines, on remand, that defendant’s conduct was excessively reckless, the court cannot depart upward a second time based on its determination that the same conduct also posed a threat to public safety. The district court cannot depart upward based on the significant risk that defendant’s conduct posed to the public, if that determination is based only on the fact that two people died. The offense level for involuntary manslaughter did not specifically take into account that defendant’s conduct resulted in two deaths and, standing alone, two deaths cannot support the court’s decision to depart.

Concerning the degree of departure, this is an extraordinary departure. Neither of the court’s two justifications for a nine-level departure was fully explained. The sentence was reversed and the case was remanded for resentencing.

Declaratory Judgment—Justiciable Controversy—Adequate Record—Collusive Action

Nautilus Insurance Co. v. 8160 S. Memorial Drive, LLC, No. 05-5076, 02/02/2006, N.D.Okla., Judge McConnell.

Nautilus Insurance Co. ("Nautilus") filed this declaratory judgment action alleging that its duty to defend its insured, 8160 South Memorial Drive, LLC (doing business as Banana Joe’s), was not triggered by claims that a Banana Joe’s employee struck appellants Bayouth and Hastings. The policy excluded these claims. Nautilus and Banana Joe’s stipulated that there was no coverage for the incident involving Bayouth and Hastings. The district court granted Nautilus a declaratory judgment that it had no duty to defend or indemnify Banana Joe’s.

Bayouth and Hastings appealed the declaratory judgment, claiming that the district court should have assumed that they were not necessary parties. Consequently, there remained a justiciable controversy even after Banana Joe’s conceded. The Tenth Circuit Court declined to indulge this assumption, because Bayouth and Hastings did not make this claim in the district court and because the declaratory judgment resolved the controversy. The Tenth Circuit also rejected Bayouth and Hastings’ claim that the record was inadequate because they did not suggest how a more fully developed record would have changed the result. Finally, the Court found that the actions of Nautilus and Banana Joe’s were not collusive (two parties who have no actual controversy, but bring an action merely to determine a legal question or receive a precedent useful in related litigation). Therefore, the Tenth Circuit found no abuse of discretion in entering the declaratory judgment. The judgment was affirmed.

Federal Juvenile Delinquency Act—Filing of Transfer Motion—Speedy Trial Rights—Search of Juvenile Records—Juvenile Delinquency Adjudication—Certified Documents from Delinquency Adjudication

U.S. v. David A., No. 04-2284, 02/03/2006, D.N.M., Judge Ebel.

The Federal Delinquency Act requires that a juvenile who has been charged with a crime occurring after his or her sixteenth birthday, and who previously has been found guilty of an act that, if committed by an adult, would fall within a specific category of offenses, must be transferred to the district court to be tried as an adult. This appeal involves the procedures that are applicable to a mandatory transfer under 18 U.S.C. § 5032.

The Tenth Circuit Court affirmed the district court ruling. The Court held that the government’s filing of a transfer motion tolls the juvenile’s thirty-day speedy trial rights provided under § 5036. The Circuit held that the government’s good faith search for the juvenile’s records satisfied the requirements of § 5032, and that a prior juvenile delinquency adjudication meets the section’s requirement that the juvenile previously had been found guilty of an act that if committed by an adult would have been one of the offenses set forth by statute.

The Circuit also held that the government met its burden of showing by a preponderance of the evidence that this juvenile had a prior juvenile delinquency adjudication by submitting certified documents stemming from that delinquency adjudication. The district court’s decision granting the government’s motion to transfer defendant to the district court to be tried as an adult was affirmed.

Age Discrimination in Employment Act—Disparate Treatment—Disparate Impact—Pretext—Surreply Brief

Pippin v. Burlington Resources Oil & Gas Co., No. 04-2157, 02/14/2006, D.N.M., Judge Ebel.

Plaintiff sued his former employer, claiming he was laid off in violation of the Age Discrimination in Employment Act ("ADEA"). The district court granted summary judgment in favor of defendant. By a motion filed after judgment, pursuant to Fed. R. Civ. P. 59(e), plaintiff contended that the district court had improperly considered new evidence defendant had submitted for the first time in its reply to the summary judgment motion. The district court denied the Rule 59 motion.

On appeal, the Tenth Circuit rejected plaintiff’s claim that the district court had improperly considered new evidence. The Circuit held that the district court did not rule on the summary judgment motion for a month-and-a-half, thus giving plaintiff adequate time to seek leave to file a surreply. Addressing the substantive ADEA claims, the Tenth Circuit determined that plaintiff did not present sufficient evidence to support an inference of pretext with respect to his disparate treatment theory.

The Tenth Circuit recognized that while this case was pending, the Supreme Court held that disparate impact theories of age discrimination are cognizable under the ADEA. After confirming that plaintiff had raised this theory in the district court, the Tenth Circuit declined to remand because plaintiff did not seek to adduce additional evidence. Therefore, the Tenth Circuit addressed the merits of this claim.

To be successful on such a claim, the employee must point to specific employment practices responsible for statistical disparities. In addition, the ADEA contains an exception from otherwise prohibited practices where they are based on reasonable factors other than age. The Tenth Circuit held that plaintiff failed to establish a prima facie case of disparate impact. The district court’s judgment was affirmed.

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