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TCL > August 2014 Issue > Summaries of Selected Opinions

August 2014       Vol. 43, No. 8       Page  143
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. 13-6014. United States v. Rollings. 05/20/2014. W.D.Okla. Judge Tymkovich. Appeal Waiver—Knowing and Voluntary Nature of Plea Agreement.

Defendant pleaded guilty to one count of knowingly possessing stolen goods. As part of his plea agreement, he waived the right to appeal his guilty plea, the restitution imposed, and any other aspect of his conviction. Notwithstanding the appeal waiver, he appealed his conviction to the Tenth Circuit, contending that his guilty plea was invalid because it was not knowing and voluntary. The government then moved to enforce the appeal waiver contained in the plea agreement.

In response to the government’s motion to enforce, defendant argued that the appeal waiver was invalid because he did not voluntarily enter into the plea agreement that contained the waiver. He contended the plea agreement was not knowing and voluntary because the district court misled him concerning the elements of the crime to which he pleaded guilty, and because it failed to apprise him that it could order substantial restitution as part of his sentence. The government countered that only the voluntariness of the appeal waiver itself, and not the entire plea agreement, was at issue.

The Tenth Circuit determined that where, as in this case, the parties intended the agreement to stand or fall as a whole, the court could examine all the terms of the plea agreement to determine whether to enforce the appeal waiver. If defendant did not voluntarily enter into the plea agreement, the appellate waiver contained within the agreement cannot stand. The appropriate inquiry requires the court to ascertain at a minimum whether defendant had notice of the nature of the charges against him and the possible penalty the charges carry. This inquiry is required even though it permits defendant to obtain appellate review of the voluntariness of the entire plea agreement—an issue the government argued was itself subject to the waiver of appellate rights.

Turning to the voluntariness of defendant’s plea, the Circuit determined that defendant failed to show his plea was involuntary. He was adequately advised of his duty to pay restitution, and adequately advised of the intent element of his crime. Accordingly, the Circuit granted the government’s motion to enforce the waiver and dismissed the appeal.

No. 13-3070. Hwang v. Kansas State University. 05/29/2014. D.Kan. Judge Gorsuch. Rehabilitation Act—Sick Leave—Reasonable Accommodation—Evidence of More Favorable Treatment.

Plaintiff was an assistant professor at Kansas State University with a one-year teaching contract. Before she could begin the fall term, she was diagnosed with cancer. The University gave her a six-month paid leave of absence. At the end of that period, plaintiff requested additional time off, but the University denied it, saying its policy allowed a maximum of six months. The University arranged for long-term disability for plaintiff. Claiming her employment was terminated, plaintiff sued the University for denying her more than six months’ sick leave, in violation of the Rehabilitation Act. The district court dismissed the case.

The Tenth Circuit observed that the Rehabilitation Act prohibits discrimination on the basis of disability. A plaintiff may establish a claim by showing that he or she is able to do her job with a reasonable accommodation for her disability. Here, plaintiff was not able to perform her job, even with reasonable accommodation.

The Circuit discussed the purposes of reasonable accommodation and concluded that the University’s six-month policy did not violate the Rehabilitation Act. Moreover, the fact that some University employees may receive one-year sabbaticals did not suggest that non-disabled employees received more favorable treatment. The district court’s judgment was affirmed.

No. 13-1143. Zinna v. Congrove. 06/05/2014. D.Colo. Judge Murphy. Attorney Fees—Trial and Appeal—Law of the Case—Mandate Rule—Appellate Jurisdiction—Issue Waived on Appeal.

In previous proceedings, a jury awarded Zinna $1,791 as damages for a violation of his First Amendment rights. He sought attorney fees in excess of $500,000, but the district court concluded that his success was merely technical and awarded him $8,000 in attorney fees. In a prior appeal, the Tenth Circuit determined that Zinna’s success was not merely technical, and remanded for the district court to calculate a lodestar and then make appropriate adjustments. The Circuit also granted Zinna’s request for appellate attorney fees. On remand, the district court again concluded that Zinna’s success was merely technical and refused to calculate a lodestar. Instead, the district court awarded Zinna’s trial counsel an amount equal to seven hours of work at $290 per hour for each of the eight days of trial, for a total trial figure of $16,240. The district court awarded $18,687 as a reasonable appellate fee, for a total of $34,927. Zinna appealed.

The Circuit first addressed whether the notice of appeal was timely. The order for trial fees was entered on November 8, 2012; the appellate-fees order was entered on March 15, 2013. Zinna filed a notice of appeal on April 13, 2013, within the requisite thirty days after the March 15 order, intending to appeal both orders. The Circuit held that the notice of appeal covered both orders under these unique circumstances (where there were two remand orders both covered by a single mandate), and that the district court did not satisfy the mandate until it entered both attorney fees orders.

On the trial fees merits, the Circuit noted that Zinna could have filed a motion with the original appellate panel to enforce the mandate rather than file a new appeal. Nevertheless, the Circuit concluded that the district court acted in contravention of the law-of-the-case doctrine when it awarded trial fees of only $16,240. Also, the "mandate rule" requires a district court to comply strictly with a mandate. Therefore, the amount of trial fees was again remanded for calculation before a different district judge. The issue of appellate fees was inadequately argued on appeal, so was deemed waived. The district court’s judgment was affirmed in part and reversed and remanded in part.

No. 13-1474. United States v. Foster. 06/18/2014. D.Colo. Judge Briscoe. Escape From Custody—"Custody" Not Dependent on Custodial Purpose—Real Physical Custody Not Required.

As a special condition of defendant’s term of supervised release, the district court required defendant to reside in a halfway house residential reentry center (RRC) for up to six months. Defendant left the RRC without permission and did not return. He was subsequently charged with escape from custody under 18 USC § 751(a). The district court dismissed the indictment, reasoning that defendant had not been in custody at the time he left the RRC. The government appealed.

On appeal, the Tenth Circuit determined that defendant had been in custody for purposes of 18 USC § 751(a) at the time he failed to return to the RRC. Under § 751(a), custody may be minimal or even constructive; real physical custody is not required. Thus, court-ordered residence at a halfway house is sufficiently restrictive to constitute custody.

Further, the sentencing court’s underlying purpose for halfway house placement—here, as a stopgap measure to prevent homelessness rather than a custodial sanction—was not determinative of whether defendant was in custody. Reading the statute broadly to punish escape whenever the government has the legal right to control the individual’s actions or limit his or her freedom, regardless of the reason for the custody, did not result in an unconstitutionally broad interpretation as applied to defendant. Defendant had fair notice that absconding from the RRC would constitute escape. The Circuit reversed the dismissal of the indictment and remanded the case for further proceedings.

No. 13-6076. United States ex rel. MMS Constr. & Paving, L.L.C. v. Western Surety Co. 06/19/2014. W.D.Okla. Judge Hartz. Breach of Contract—Sufficiency of the Evidence—Attorney Fees—Miller Act.

MMS Construction & Paving, L.L.C. (MMS) contracted with Head, Inc. to pave asphalt runway shoulders at an Air Force base in Oklahoma on a project for which Head served as the general contractor and MMS was a subcontractor. Due to disagreements with Head, MMS quit the job and later sued Head and its insurer under state law and the federal Miller Act. A jury awarded MMS $800,000 in damages and $60,000 in attorney fees. Head appealed.

The Tenth Circuit affirmed the judgment in MMS’s favor on its breach-of-contract claim under state law, concluding that there was sufficient evidence that Head breached the contract. The Circuit also affirmed the verdict for lost profits, but found insufficient the evidence that MMS suffered damages due to Head’s misrepresentations. The Circuit declined to address Head’s argument that even if it owed money to MMS, the amount was not material, because Head had not raised the issue in its post-verdict motion. Federal courts are powerless to set aside a judgment on the ground of insufficient evidence unless the appellant filed a post-verdict motion seeking that relief. Similarly, Head waived its claim that a state statute limited MMS’s recovery because Head had not presented this claim to the district court. Finally, the Circuit held that although the Miller Act precluded MMS from recovering attorney fees, such fees were proper on the state-law claims. The district court’s judgment was affirmed, except for the misrepresentation claim.

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