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TCL > May 2011 Issue > Summaries of Selected Opinions

May 2011       Vol. 40, No. 5       Page  141
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Summaries of Selected Opinions

Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: (click on "Opinions/Rules/Statutes").

No. 09-1420. Sarkar v. McCallin. 02/22/2011. D.Colo. Judge McKay. Employment—Free Speech—Statements Made in Employment Capacity—Race Discrimination—Pretext—Retaliation—Notice of Deposition—State Agency.

Plaintiff sued his former employers, who were various officials of the Colorado Community College System (CCCS). Plaintiff’s job was to manage CCCS’s implementation of a new computer system. The relationship between the computer-system vendor and plaintiff frequently was adversarial. Plaintiff’s employment was terminated in part based on vendor relations. He sued, alleging that he was fired based on his public statements about the computer vendor, in violation of his rights to free speech. He also brought claims for discrimination and retaliation, claiming a discriminatory animus against him as a native of India. The district court granted summary judgment in favor of defendants. Plaintiff appealed the summary judgment order and a protective order regarding his notice of deposition.

The Tenth Circuit first rejected plaintiff’s free-speech claim based on his public criticisms of the computer vendor, because all statements were made in his job capacity, not as a citizen or taxpayer. The Circuit then addressed plaintiff’s race-discrimination claim, concluding that CCCS’s reasons for discharging him were not a pretext for discrimination; rather, it boiled down to a disagreement about his work performance. Because there was no dispute that CCCS believed that plaintiff’s work performance was inadequate and acted on that belief in good faith, summary judgment was appropriate.

For plaintiff’s retaliation claim, the Circuit determined that he had not produced any evidence of retaliation. The decision to terminate him was made before he ever complained of discrimination.

Finally, the Circuit held that plaintiff’s deposition notice under Fed. R. Civ. P. 30(b)(6) was defective, because that rule applies only to the deposition of organizations, not individuals. The individual defendants could not be deposed as agency heads because plaintiff’s official-capacity claims for retroactive relief were barred by the Eleventh Amendment. Therefore, this action could be considered only as a suit against the individual officials and not against the state. The district court’s judgment was affirmed.

No. 09-6261. United States v. Story. 02/22/2011. W.D.Okla. Judge Tymkovich. Sentencing Guidelines—Upward Departure Based on Need for Rehabilitative Drug Treatment.

Defendant pleaded guilty to one count of unlawful possession of stolen mail. She stole the mail in search of checks, which a co-conspirator would alter and cash. She then would receive a portion of the proceeds, either in cash or in drugs.

Her presentence report recommended a Sentencing Guidelines sentence within the range of twelve to eighteen months. She sought a downward departure based on her mental health history and drug addiction. The district court, however, departed upwardly from the Guidelines range and sentenced defendant to twenty-four months, reasoning that the Bureau of Prisons made its Residential Drug Abuse Program available only to inmates with a sentence of twenty-four months or more.

Counsel objected to this sentence on the basis that there was no guarantee that defendant would be eligible for the treatment program, because she had other outstanding warrants. On appeal, defendant’s appellate counsel advanced the argument that the sentence ran afoul of the command in 18 U.S.C. § 3582(a) that sentencing courts may not use rehabilitative goals to increase the length of a prison sentence. Because defendant had not objected on this basis at sentencing, the Tenth Circuit reviewed the argument only for plain error.

The Circuit noted that the prohibition on use of rehabilitative goals in sentencing in § 3582(a) is in conflict with the sentencing goals provisions of 18 U.S.C. § 3553(a)(2)(D), which requires the sentencing court to consider a defendant’s need for "educational or vocational training, medical care, or other correctional treatment." Circuits are split on whether it is permissible to give a defendant a longer prison sentence to promote rehabilitation, and the issue currently is on certiorari review in the U.S. Supreme Court.

The Circuit concluded that § 3582(a) prevents a sentencing court from increasing a sentence for rehabilitative purposes. The Circuit ruled that the district court erred in increasing defendant’s sentence, but it also concluded that because the statute has created a circuit split and there is no controlling circuit, the lower court did not commit plain error. Accordingly, the Circuit affirmed the district court’s judgment and sentence.

No. 09-3010. United States v. Davis. 02/25/2011. D.Kan. Judge Tymkovich. Fourth Amendment—Probable Cause and Consent to Search—Errors in Notice of Intent to Use Prior Conviction for Enhancement Purposes—Evidence of Subsequent Acts Under F.R.E. 404(b).

Defendant was convicted of various drug possession and distribution charges after Kansas state troopers found a bag containing cocaine in a rental car in which he was a passenger. A trooper stopped the car for speeding. The driver appeared extremely nervous and gave implausible information about his travel itinerary and the rental of the car he was driving. Officers also questioned defendant, because his name was on the rental agreement, and because he also seemed abnormally nervous. His account of the rental conflicted both with the driver’s and with the information on the rental agreement. The officers ran a criminal history check on defendant and found that he had a prior history of drug trafficking.

Although defendant initially refused consent to search the vehicle, he changed his mind after the trooper indicated he intended to call a canine unit to the scene. Defendant asked how long it would be until the dog arrived, and was told thirty minutes. He then asked how long it would take to search the car by hand, and the officer indicated that it would only take five or ten minutes. The trooper verified defendant’s consent and troopers searched the vehicle, during which they found the bag containing cocaine.

On appeal, defendant argued that the detention and search were unreasonable. The Tenth Circuit disagreed. Defendant’s and the driver’s abnormal nervousness, their inconsistent travel plans, and defendant’s criminal history gave the officers reasonable suspicion that defendant was involved in illegal activity, and permitted his detention beyond the scope and duration of the traffic stop. Further, defendant’s consent to the search was voluntary.

At sentencing, the district court imposed a twenty-year mandatory minimum sentence because defendant had a prior Indiana state court conviction for dealing in cocaine. The government gave defendant a pretrial notice of its intent to seek this sentencing enhancement, as required by 18 U.S.C. § 851; however, the notice listed an incorrect case number that was associated with the conviction of another defendant with the same name. By the time of sentencing, the error had been corrected and the presentence report contained the correct case number associated with defendant’s prior state court conviction.

Defendant argued on appeal that the error deprived him of the notice of the prior conviction required by due process. The Circuit disagreed. Defendant failed to show prejudice from the erroneous notice. He did not contest that he had a prior Indiana state court drug conviction. Also, he had four opportunities to object to the sufficiency of the notice of conviction based on the incorrect case number, and failed to do so.

Finally, defendant objected to the admission of evidence of a subsequent drug arrest in Indiana, contending that it was inadmissible under Federal Rule of Evidence 404(b). The Circuit found that admission of this arrest was permissible. Evidence admitted under F.R.E. 404(b) may relate to conduct occurring after the charged offense. Here, the evidence was admissible for F.R.E. 404(b) purposes because it showed defendant’s knowledge of the bag’s contents and of the drug conspiracy, tended to show that defendant knowingly participated in the drug conspiracy, and showed that the cocaine’s presence in the vehicle was not a result of mistake or accident. The evidence also was relevant because of the similarity between the subsequent act and the crime charged in this case. There was no danger of unfair prejudice in admission of the evidence. Moreover, although defendant did not request a contemporaneous limiting instruction, the district court did give a proposed limiting instruction as part of its final jury instructions. The Circuit therefore affirmed defendant’s judgment and sentence.

No. 10-1066. Madron v. Astrue. 03/15/2011 nunc pro tunc 02/04/2011. D.Colo. Judge Gorsuch. Attorney Fees—Equal Access to Justice Act (EAJA)—Social Security Disability—Successful Merits Appeal Does Not Automatically Warrant EAJA Fees.

In a previous appeal, plaintiff was successful on her claim that she was unable to work and therefore entitled to Social Security disability benefits. Her case was remanded for an immediate award of benefits. Thereafter, she filed the underlying action to recoup her attorney fees and expenses under the Equal Access to Justice Act (EAJA). The district court denied her application, holding that the government’s position in the first appeal was "substantially justified." Plaintiff appealed.

The Tenth Circuit rejected plaintiff’s argument that by prevailing in her first appeal, she proved that the government’s position was not substantially justified. The Circuit explained that the first appeal involved whether there was substantial evidence to support the administrative decision. The EAJA application, in contrast, involved a question of whether the government’s position was reasonable even if wrong. The government’s position can be substantially justified even though it is not correct. The district court’s judgment was affirmed.

No. 09-1233. Mathews v. Denver Newspaper Agency LLP. 03/16/2011. D.Colo. Judge Murphy. Employment Discrimination—Demotion—Arbitration—Contractual and Statutory Rights—Judicial Estoppel.

Plaintiff, originally from India, was a unionized supervisor at the Denver Newspaper Agency. He was demoted based on the complaints of a coworker. He claimed his demotion was based on his national origin, in violation of Title VII. Pursuant to his union’s collective bargaining agreement (CBA), he had the option of submitting his grievance to arbitration, which he chose to do.

The arbitrator determined that plaintiff was demoted not because of his national origin, but because a number of complaints had been submitted against him, causing the employer to entertain a good faith concern that his personality did not allow him to be an effective supervisor. The arbitrator denied plaintiff’s grievance.

Plaintiff then sought and was granted Social Security benefits based on his claim of total disability. Next, he filed this lawsuit.

The district court granted summary judgment on alternative grounds: (1) plaintiff’s submission of his claims to binding arbitration constituted a waiver of his right to seek a judicial remedy; or (2) plaintiff was not qualified for his position based on his claims to the Social Security Administration (SSA) that he was totally disabled before his demotion. The district court also held that plaintiff failed to prove a prima facie case of retaliatory demotion. Plaintiff appealed.

The Tenth Circuit first ruled that the arbitration did not foreclose plaintiff’s lawsuit because under the CBA, the arbitrator had the authority to resolve only contractual rights, not statutory rights under Title VII. Nevertheless, plaintiff failed to prove a prima facie case of discrimination because he could not show that he was qualified for his job. By claiming total disability, he was judicially estopped from asserting he was qualified for his job. The doctrine of judicial estoppel prohibits a party from taking inconsistent positions, thus giving him an unfair advantage and creating the perception that the court was misled. Because plaintiff did not explain the inconsistency between his claim to the SSA of total disability before he was demoted and his current claim that he was qualified for the position, he was estopped from pursuing his wrongful demotion claim. Finally, the Circuit held that plaintiff had produced sufficient evidence to go forward on his claim of retaliatory demotion. The district court’s judgment was affirmed in part and reversed in part, and the case was remanded.

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