Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch

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R44772

Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch

Summary

On January 31, 2017, President Trump announced the nomination of Judge Neil M. Gorsuch of

the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) to fill the vacancy on the Supreme

Court left by the death of Justice Antonin Scalia on February 13, 2016. Judge Gorsuch has served

as a judge on the Tenth Circuit since August 2006, and has also sat, by designation, on the U.S.

Court of Appeals for the Ninth Circuit and the U.S. Court of Appeals for the District of Columbia

Circuit.

This report provides a tabular listing of cases in which Judge Gorsuch authored a majority,

concurring, or dissenting opinion. The opinions are categorized into three tables: Table 1

identifies opinions authored by Judge Gorsuch on behalf of a unanimous panel; Table 2 contains

controlling opinions authored by Judge Gorsuch in which one or more panelists wrote a separate

opinion; and Table 3 lists cases where Judge Gorsuch wrote a concurring or dissenting opinion

(decisions where Judge Gorsuch wrote both the majority opinion and a separate concurrence are

included in this final table). Opinions are identified and briefly discussed in each table in reverse

chronological order. The opinions are also categorized by their primary legal subject.

While this report identifies and briefly describes judicial opinions authored by Judge Gorsuch

during his time on the federal court, it does not analyze the implications of his judicial opinions or

suggest how he might approach legal issues if appointed to the Supreme Court. Those matters

will be discussed in a forthcoming CRS report. Key CRS products related to the Supreme Court

vacancy and Judge Gorsuch’s nomination are collected in CRS Legal Sidebar WSLG1526,

Vacancy on the Supreme Court: CRS Products, by (name redacted) and (name redacted).

Congressional Research Service

Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch

Contents

Tables

Table 1. Opinions Authored by Judge Gorsuch for a Unanimous Panel ......................................... 5

Table 2. Majority Opinions Authored by Judge Gorsuch for Which Another Judge Wrote

a Concurrence or Dissent ......................................................................................................... 109

Table 3. Concurring and Dissenting Opinions Authored by Judge Gorsuch ............................... 121

Contacts

Author Contact Information ........................................................................................................ 152

Congressional Research Service

Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch

n January 31, 2017, President Trump announced the nomination of Judge Neil M.

Gorsuch of the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) to fill the

vacancy on the Supreme Court left by the death of Justice Antonin Scalia on February 13,

2016.1 Judge Gorsuch has served as an appellate judge for the Tenth Circuit since August 2006,

and has also sat, by designation,2 on both the U.S. Court of Appeals for the Ninth Circuit (Ninth

Circuit) and the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit).

O

During his tenure on the bench, Judge Gorsuch has served on three-judge or en banc Tenth Circuit

panels that have issued over 2,700 judicial decisions.3 He has also sat, by designation, on Ninth

Circuit panels that issued decisions in 11 cases (in which Judge Gorsuch authored dissenting

opinions in two cases) and D.C. Circuit panels that issued decisions in six cases (for which Judge

Gorsuch authored no opinions).4

The Tenth Circuit, like appellate courts for other numbered circuits, generally reviews cases

initiated within the geographic region over which the circuit has jurisdiction; in the case of the

Tenth Circuit, this includes the states of Colorado, Kansas, Mexico, Wyoming, and Utah, along

with portions of Yellowstone National Park reaching into Idaho and Montana.5 While the Tenth

Circuit’s docket includes cases touching upon a wide range of legal topics, including

administrative law, bankruptcy, contract disputes, immigration, intellectual property, and Indian

Law, a significant portion of the docket involves criminal law and claims brought by federal or

state prisoners concerning their convictions or subsequent incarceration.6 Unlike the Supreme

Court, which enjoys “almost complete discretion” in selecting its cases, the federal courts of

appeals are required to adjudicate many cases as a matter of law and, as a result, tend to hear

1

The White House, President Trump Announces Supreme Court of the United States Nominee,

https://www.whitehouse.gov/featured-videos/video/2017/01/31/president-trump-announces-supreme-court-unitedstates-nominee (last accessed Feb. 22, 2017).

2

U.S. Court of Appeals for the Tenth Circuit, General Information, https://www.ca10.uscourts.gov/clerk (last accessed

Feb. 22, 2017).

3

When responding to a questionnaire from the Senate Committee on the Judiciary, Judge Gorsuch estimated that he

had sat on panels that had issued “approximately 2,750” decisions. U.S. Senate Committee on the Judiciary, Responses

to Questionnaire for the Nominee of the Supreme Court (public version), at 25, https://www.judiciary.senate.gov/imo/

media/doc/Neil%20M.%20Gorsuch%20SJQ%20(Public).pdf. CRS searched all federal cases in the Westlaw legal

database using the search strategy pa(Gorsuch) or ju(Gorsuch) or wb(Gorsuch), which are the segments for “Panel,”

“Judge,” and “WrittenBy,” and which would presumably identify all cases identified by Westlaw editors on which

Judge Gorsuch sat on a circuit panel (including, but not limited to, those cases where he wrote the panel’s opinion) and

retrieved 2,731 results. However, searching federal cases in LexisAdvance, another legal database, for ju(gorsuch),

which would identify the cases where Lexis editors identified Judge Gorsuch as a member of a panel that issued an

opinion, retrieved 2,860 results. A review of these results revealed instances where a single case generated multiple

documents. For example, a Tenth Circuit ruling in Allen v. Workman appeared in the LexisAdvance results as two

separate documents: Allen v. Workman, 464 F. App’x 768 (10th Cir. Apr. 19, 2012) and Allen v. Workman, 2012 U.S.

App. Lexis 20121 (10th Cir. Apr. 12, 2012). However, Westlaw returned only one of these documents, 464 F. App’x

768 (10th Cir. 2012).

4

The Chief Justice of the U.S. Supreme Court “may, in the public interest, designate and assign temporarily any circuit

judge to act as circuit judge in another circuit upon request by the chief judge or circuit justice of such circuit.” 28

U.S.C. § 291(a). Judge Gorsuch’s designation to sit as a visiting judge was pursuant to this process. See Hurt v. United

States Dist. Court Judges, 258 F. App’x 341, n.1 (D.C. Cir. 2007).

5

General Information on the Tenth Circuit, supra note 2.

6

Admin. Office of the U.S. Courts, Federal Court Management Statistics, U.S. Court of Appeals - Judicial Caseload

Profiled, at 23 (Sept. 2016), http://www.uscourts.gov/sites/default/files/data_tables/

fcms_na_appprofile0930.2016_2.pdf (categorizing appeals filed with, and terminated by, the Tenth Circuit between

Sept. 2010 and Sept. 2016, and showing that over 40 percent, and in some years more than half, of the appellate docket

consisted of criminal cases or claims brought by prisoners).

Congressional Research Service

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Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch

“many routine cases in which the legal rules are uncontroverted.”7 Perhaps indicative of the

nature of federal appellate work, the vast majority of cases decided by three-judge panels of

federal courts of appeals are decided without dissent,8 and the Tenth Circuit is no exception.9

This report provides tabular listings of the roughly 854 cases in which Judge Gorsuch authored a

majority, concurring, or dissenting opinion. Arguably, these written opinions provide the greatest

insight into Judge Gorsuch’s judicial approach, as a judge’s vote or decision to join an opinion

authored by a colleague may not necessarily represent full agreement with a colleague’s views.10

Accordingly, this report does not include cases in which Judge Gorsuch sat on a reviewing

judicial panel, but did not author an opinion. Additionally, instances where Judge Gorsuch was

part of a panel that issued a per curiam opinion, in which no particular judge was credited as an

author, are omitted from this report.11 The report also does not address subsequent legal

proceedings that may have occurred after a cited decision was issued.12

The opinions discussed in this report are categorized into three tables: Table 1 identifies opinions

authored by Judge Gorsuch on behalf of a unanimous panel; Table 2 contains controlling

opinions authored by Judge Gorsuch in which one or more panelists wrote a separate opinion; and

Table 3 lists cases where Judge Gorsuch wrote a concurring or dissenting opinion, including

cases where Judge Gorsuch wrote both the majority opinion and a separate concurrence.13 A

concurring opinion is identified as a “concurrence in the judgment”—that is, an opinion where

the author agrees with the ultimate conclusion reached by the majority but not the manner in

which it was reached—only when the concurrence is expressly labeled as such.14

7

Louis J. Sirico, Jr., The Citing of Law Reviews by the United States Courts of Appeals: An Empirical Analysis, 45 U.

MIAMI L. REV. 1051, 1052 n.8 (1991); see generally HON. RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND

REFORM 367 (2009) (observing that “more of the work of [the federal appellate] courts really is technical.... Most of the

appeals they get can be decided uncontroversially by the application of settled principles”).

8

See FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 160 (2007) (noting the “relative paucity of

circuit court panel dissents”).

9

See Christopher A. Cotropia, Determining Uniformity Within the Federal Circuit by Measuring Dissent and En Banc

Review, 43 LOY. L.A. L. REV. 801, 815 (2010) (noting that from 1998 to 2009, 2.54% of the opinions issued by the

Tenth Circuit garnered a dissent); Hon. Neil M. Gorsuch, Law’s Irony, 37 HARV. J.L. & PUB. POL’Y 743, 753 (2014)

(“Over ninety percent of the decisions issued by my court are unanimous; that’s pretty typical of the federal appellate

courts.”).

10

See Hon. Ruth Bader Ginsburg, as quoted in Irin Carmon, Opinion, Justice Ginsburg’s Cautious Radicalism, N.Y.

TIMES (Oct. 24, 2015), http://www.nytimes.com/2015/10/25/opinion/sunday/justice-ginsburgs-cautious-radicalism.html

(observing that “an opinion of the court very often reflects views that are not 100 percent what the opinion author

would do, were she writing for herself”); Steven D. Smith, Lessons from Lincoln: A Comment on Levinson, 38 PEPP. L.

REV. 915, 924 (2011) (“[T]he fact that a judge joins in a majority opinion may not be taken as indicating complete

agreement. Rather, silent acquiescence may be understood to mean something more like ‘I accept the outcome in this

case, and I accept that the reasoning in the majority opinion reflects what a majority of my colleagues has agreed

on.’”).

11

This report also does not attempt to identify the various rulings made by circuit panels on procedural issues during

the course of litigation (e.g., granting a litigator’s request for an extension of time to file a brief), which are not

captured by searches of Lexis or Westlaw databases.

12

A forthcoming CRS report analyzing Judge Gorsuch’s jurisprudence will provide a listing of Tenth Circuit decisions

subsequently reviewed by the Supreme Court in which Judge Gorsuch had been a member of the reviewing circuit

court panel.

13

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016); Browder v. City of Albuquerque, 787 F.3d 1076 (10th

Cir. 2015).

14

James F. Spriggs II & David R. Stras, Explaining Plurality Decisions, 99 GEO. L.J. 515, 519-520 (2011) (“[A] simple

concurring opinion indicates that the [judge] writing separately agrees with the legal rule and its application in the

majority opinion but that there is some aspect of the case worthy of further discussion.... [A]n opinion concurring in the

(continued...)

Congressional Research Service

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Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch

Cases are listed in reverse chronological order. In each case, the key ruling or rulings of the case

are succinctly described. Judicial opinions discussed in this report are categorized using the

following 18 legal subject areas:

Administrative Law

Bankruptcy

Civil Rights

Civil Liability (e.g., tort, preemption, arbitration, class actions, statutory right to

sue)

Contracts

Criminal Law and Procedure

Education

Environmental Law

Federal Courts (e.g., standing to sue, civil procedure)

First Amendment (including both constitutional protections and closely related

statutory protections contained in the Religious Freedom Restoration Act)

Habeas

Immigration

Indian Law

Insurance

Intellectual Property

Labor and Employment

Public Benefits (e.g., eligibility for Social Security disability)

Tax

Where appropriate, multiple subject areas are identified as relevant to a particular case. However,

the list above is not an exhaustive accounting of all possible legal subjects addressed in judicial

writings of Judge Gorsuch. Moreover, the fact that a case is categorized under a particular legal

subject area does not necessarily mean that some observers might not deem other categories to be

pertinent. For example, the “Habeas” category is used for cases that involve review (or

consideration of whether to review) petitions for a writ of habeas corpus from state or federal

prisoners. However, some observers might also argue that such cases could properly fall under the

“Criminal Law and Procedure” category (because habeas petitions are typically brought by

criminal defendants challenging their convictions or subsequent incarceration) or, alternatively,

the “Federal Courts” category (because habeas proceedings are civil in nature and often turn on

(...continued)

judgment is the functional equivalent of a dissent from the [controlling opinion’s] reasoning even if it represents

agreement with the result reached in the case.”). The nature of a concurring opinion, including the legal significance

that should be given to whether the opinion labels itself a “concurrence” or a “concurrence in the judgment,” is a matter

of scholarly discussion and occasional judicial importance, particularly in cases where there is a question as to whether

a majority of the court shared the same legal rationale to support the court’s ruling. See generally Sonja R. West,

Concurring in Part & Concurring in the Confusion, 104 MICH. L. REV. 1951, 1955-1956 and 1958 (2006) (arguing that

“the phrase following the comma” after the authoring judge’s name—e.g., “concurring” or “concurring in the

judgment”—has been “used in an inconsistent, unclear, and often contradictory manner” that has led to confusion

among commentators and courts regarding the degree to which the judge endorses the analysis of the majority opinion).

Congressional Research Service

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Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch

questions of when or whether courts may review a habeas claim). Accordingly, while the

categorizations employed in this report are intended to provide a helpful guide to readers in

locating decisions dealing with major legal topics, the categories do not necessarily reflect the full

range of legal issues a judicial opinion may involve.

While this report identifies and briefly describes those opinions authored by Judge Gorsuch

during his tenure on the federal bench, it does not analyze the implications of his judicial opinions

or suggest how he might approach legal issues if appointed to the Supreme Court. Those matters

will be discussed in a forthcoming CRS report.

Methodology

The cases included in this report were compiled by searching all federal cases in the

LexisAdvance legal database for writtenby(Gorsuch),15 concurby(Gorsuch)16 and

dissentby(Gorsuch).17 Because editors of different legal databases may vary in how they identify

cases,18 a subsequent search was conducted of all federal cases in the Westlaw legal database

using wb(Gorsuch) as a cross-check to those results.19 These results were last compared on

February 22, 2017. Ultimately, this methodology identified approximately 854 instances in which

Judge Gorsuch is credited as an author of a judicial opinion in cases either before the Tenth

Circuit (approximately 852 cases) or the Ninth Circuit (two cases).20 It should be noted that in a

handful of cases, an opinion authored by Judge Gorsuch was subsequently republished with

minimal, and sometimes only stylistic, changes. Depending upon the nature of these

modifications, duplicative decisions are either listed in separate table rows (i.e., when there is a

substantive change to the original opinion21) or, alternatively, a single table row is used to identify

and discuss both decisions (e.g., when the difference between the two opinions consists of

stylistic changes necessary for official publication22).

15

The “WrittenBy” segment in LexisAdvance restricts searches to the names of the judge(s) writing an opinion, as

identified by Lexis editors.

16

The “ConcurBy” segment restricts searches to the names of the judge(s) writing a concurring opinion, including

opinions concurring in part and opinions concurring in part and dissenting in part, as identified by Lexis editors.

17

The “DissentBy” segment restricts searches to the names of the judge(s) writing a dissenting opinion, an opinion

dissenting in part, or an opinion concurring in part and dissenting in part, as identified by Lexis editors.

18

See supra note 3 (observing differences in search results for the number of panel decisions in which Judge Gorsuch

participated, depending upon whether the Westlaw or LexisAdvance database was used).

19

The “WB” or “Writtenby” segment in Westlaw restricts searches to the names of the judge(s) writing an opinion, as

identified by Westlaw editors.

20

Not every case identified using this methodology actually proved relevant. For example, a February 22, 2017, search

of LexisAdvance using the methodology described above identified Judge Gorsuch as the author of the court opinion in

Jaramillo v. Vallejos, 220 F. App’x. 838 (2007), though the opinion credits another judge on the panel.

21

See, e.g., United States v. Henry, No. 15-6181, 2017 U.S. App. LEXIS 2020 (Feb. 3, 2017) (republishing opinion

originally published in 839 F.3d 1271 (10th Cir. 2016), but adding a substantive footnote).

22

See, e.g., Smith v. McCord, 707 F.3d 1161 (10th Cir. 2013) (modified, by order published by No. 12-2041, 2013 U.S.

App. LEXIS 3549 (10th Cir. Jan. 29, 2013), to make “stylistic changes” necessary for official publication).

Congressional Research Service

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Table 1. Opinions Authored by Judge Gorsuch for a Unanimous Panel

Case Name

Citation

Year

Role

Subject

Holding

United States v. Henry

No. 156181, 2017

U.S. App.

LEXIS 2020

2017

Authored

majority

Criminal Law &

Procedure

Remanded: In revoking defendant’s supervised release and imposing a

new sentence after finding that the defendant, after his release from

federal prison, had engaged in two assaults and lied to his probation

officer, the district court did not apply the standards required under

Tenth Circuit precedent concerning the admission of certain hearsay

evidence. The district court inappropriately relied upon hearsay in

finding the defendant committed one of the assaults. Remand was

therefore required for a new sentencing analysis by the lower court.

This opinion is a reissuance of an earlier opinion in 839 F.3d 1271

(10th Cir. 2016), discussed below, with an additional footnote.

United States v.

Marshall

No. 167068, 2017

U.S. App.

LEXIS 401

2017

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right because petitioner

was not sentenced under the “residual clause” of the Armed Career

Criminal Act that was invalidated as unconstitutionally vague by the

Supreme Court in Johnson v. United States.

Bigham v. Allbaugh

No. 167068, 2017

U.S. App.

LEXIS 389

2017

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was untimely and did not qualify for equitable tolling.

Hammond v.

Stamps.com, Inc.

844 F.3d

909

2016

Authored

majority

Administrative

Law

Order vacated and remanded: A class action suit against a postage

subscription service sufficiently alleged an amount in controversy to

support federal jurisdiction under the Class Action Fairness Act

(CAFA); the legally possible minimum damages based on each

potential class member exceeded the jurisdictional minimum of the

CAFA regardless of whether the class action would likely recover

damages.

United States v. Rivera

No. 151228, 2016

U.S. App.

Lexis 21915

2016

Authored

majority

Criminal Law &

Procedure;

Federal Courts

Affirmed: There was no plain error in allowing prosecution to ask a

question on cross-examination implying the existence of certain facts

that were not supported in the record.

CRS-5

Case Name

Citation

Year

Role

Subject

Holding

Smith v. Farris

No. 165115, 2016

U.S. App.

LEXIS

21623

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings.

United States v.

Mendoza-Haro

Nos. 151276 & 161023, 2016

U.S. App.

LEXIS

21611

2016

Authored

majority

Criminal Law &

Procedure

Affirmed: District court acted within its discretion and committed no

error in denying a motion for reconsideration by defendant for

sentence reduction based on her post-sentencing conduct.

White v. Deere & Co.

No. 161098, 2016

U.S. App.

LEXIS

21287

2016

Authored

majority

Federal Courts

Affirmed: In a product liability suit, district court did not err in its jury

instructions, required under Colorado law, concerning a

presumption that the product was free from defect.

Hopper v. Fenton

No. 165006, 2016

U.S. App.

LEXIS

21292

2016

Authored

majority

Criminal Law &

Procedure; Civil

Rights

Affirmed: No constitutional violation occurred under 42 U.S.C. §1983

because the failure to include certain facts in the affidavit did not

vitiate the probable cause that supported the defendant’s arrest.

United States v.

Tarango

No. 162015, 2016

U.S. App.

LEXIS

21038

2016

Authored

majority

Habeas; Criminal

Law &

Procedure

Affirmed: A writ of coram nobis to invalidate a guilty plea entered 17

years prior to the instant petition was not available because the

defendant failed to exercise due diligence in raising his ineffective

counsel claim in prior proceedings.

Lancaster v.

Sprint/United Mgmt.

Co.

No. 166056, 2016

U.S. App.

LEXIS

21037

2016

Authored

majority

Labor &

Employment

Affirmed: Plaintiff-employee failed to meet her evidentiary burden to

survive defendant’s motion for summary judgment on employment

discrimination and retaliation claims under the Americans with

Disabilities Act.

CRS-6

Case Name

Citation

Year

Role

Subject

Holding

Garman v.

Garaychochea

No. 164096, 2016

U.S. App.

LEXIS

20920

2016

Authored

majority

Criminal Law &

Procedure; Civil

Rights

Affirmed: Police officers did not deny plaintiff his due process rights

during his pretrial detention; evidence clearly demonstrated that

contrary to plaintiff’s claim, the officers did not prevent him from

changing his soiled clothes.

Morris v. Dowling

No. 165131, 2016

WL

6871874

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

Moore v. McCollum

No. 166167, 2016

U.S. App.

LEXIS

19307

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel, as

appellate counsel did not err in omitting a due process claim.

United States v. Henry

839 F.3d

1271

2016

Authored

majority

Criminal Law &

Procedure

Remanded: In revoking defendant’s supervised release and imposing a

new sentence after finding that the defendant, following his release

from federal prison, had engaged in two assaults and lied to his

probation officer, the district court did not apply the standards

required under Tenth Circuit precedent concerning the admission of

certain hearsay evidence. The court inappropriately relied upon

hearsay in finding that the defendant committed one of the assaults.

Remand was therefore required for a new sentencing analysis by the

lower court.

This opinion was subsequently reissued with an additional footnote

as No. 15-6181, 2017 U.S. App. LEXIS 2020 (Feb. 3, 2017) discussed

above.

Alvarez v. Grosso

No. 151398, 2016

U.S. App.

LEXIS

18656

2016

Authored

majority

First

Amendment;

Federal Courts

Affirmed: An order barring entry onto a military base was upheld

because the appellant, who did not question the military

commander’s authority to bar civilians from the base, failed to

preserve a First Amendment claim that any portion of the base was

used as a public forum, and he did not suggest that the announced

grounds for the bar were arbitrary or discriminatory.

CRS-7

Case Name

Citation

Year

Role

Subject

Holding

Hodge v. Utah

No. 164043, 2016

U.S. App.

LEXIS

18567

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings.

United States v.

Espinoza

No. 162176, 2016

U.S. App.

LEXIS

18521

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

Parker v. Dowling

No. 166219, 2016

U.S. App.

LEXIS

17900

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right because, under

Oklahoma law, the power to commute a sentence is in the sole

discretion of the governor and not subject to a due process

challenge.

United States v.

Tolliver

No. 165057, 2016

U.S. App.

LEXIS

16950

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel. The

trial counsel was not ineffective for failing to challenge the

constitutional sufficiency of petitioner’s indictment, and counsel’s

sentencing calculation error did not result in prejudicial error.

UTE Indian Tribe of

the Uintah & Ouray

Reservation v. Myton

835 F.3d

1255

2016

Authored

majority

Federal Courts;

Indian Law

Reversed and reassigned: District court erred when it dismissed the

Ute Indian Tribe’s suit alleging that a town was improperly

prosecuting tribal members in state court for offenses on land that

had been restored to tribal jurisdiction. The tribe stated a plausible

claim for relief premised on prior judicial decisions that determined

the boundaries of tribal jurisdiction. Reassignment to a different judge

was also appropriate given judge’s failure to give effect to court’s

earlier mandate in the litigation.

This decision is a reissuance, with a sua sponte amendment of a

single sentence, of UTE Indian Tribe of the Uintah & Ouray

Reservation v. Myton, 832 F.3d 1220 (10th Cir. 2016).

CRS-8

Case Name

Citation

Year

Role

Subject

Holding

Watson v. Missouri

No. 163095, 2016

U.S. App.

LEXIS

15690

2016

Authored

majority

Federal Courts

Affirmed: Eleventh Amendment and the doctrine of abstention set

forth by the Supreme Court in Younger v. Harris barred claims that

defendants violated plaintiff’s constitutional and state law rights by

ordering him to provide child support and health insurance.

Winkel v. Heimgartner

No. 163177, 2016

U.S. App.

LEXIS

15351

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel because

his attorney did not act contrary to defendant’s interests by

requesting competency proceedings, and the finding of incompetence

to stand trial did not violate his right to a speedy trial.

Glaser v. Raemisch

No. 161228, 2016

U.S. App.

LEXIS

15211

2016

Authored

majority

Habeas; Civil

Rights

Affirmed, certificate of appealability granted: District court’s order

dismissing the claim that the defendant was unconstitutionally denied

good time credits was affirmed because a prisoner cannot use 42

U.S.C. §1983 to challenge the validity of his sentence. The court also

properly dismissed his habeas petition because his petition for

certiorari was still pending before the Colorado Supreme Court.

However, a certificate of appealability was granted because his state

remedies would be exhausted once the state court denied his

petition for certiorari.

United States v.

Gronski

No. 161228, 2016

U.S. App.

LEXIS

15005

2016

Authored

majority

Criminal Law &

Procedure

Affirmed: Defendant was precluded from requesting a reduction in his

sentence as a result of a retroactive change in U.S. Sentencing

Guidelines, because he made a request for reduction the prior year

but did not appeal the denial; further, his sentence, which arose from

a plea agreement, was not “based on” the guideline range.

United States v.

Ackerman

831 F.3d

1292

2016

Authored

majority

Criminal Law &

Procedure

Reversed and remanded: The National Center for Missing and

Exploited Children (NCMEC) is a government actor for Fourth

Amendment purposes, so its review of the defendant’s emails

qualified as a Fourth Amendment search for which a warrant was

required; remand was necessary for the district court to determine

whether the warrantless search was nonetheless reasonable.

* Judge Hartz did not join the portion of the panel opinion that

discussed the potential application of the Supreme Court’s ruling in

United States v. Jones, but did not author a separate opinion.

CRS-9

Case Name

Citation

Year

Role

Subject

Holding

United States v. Reed

654 F.

App’x 935

2016

Authored

majority

Habeas; Criminal

Law &

Procedure

Affirmed: Appeal of denial of motion to amend defendant’s forfeiture

motion was denied for failure to raise the claim properly, and any

challenge to defendant’s conviction could not be appealed, but

required a 28 U.S.C. §2255 habeas corpus order.

Ellis v. Lemons

No. 164031, 2016

U.S. App.

LEXIS

12536

2016

Authored

majority

Federal Courts

Affirmed: District court’s decision to abstain from proceeding on the

merits pending resolution of a closely related and ongoing state court

proceeding was appropriate, so long as the pending state court

proceeding existed before the federal district court had begun its

own proceedings on the merits.

United States v.

Johnson

No. 157070, 2016

U.S. App.

LEXIS

12178

2016

Authored

majority

Criminal Law &

Procedure

Appeal dismissed: Criminal appeal was dismissed pursuant to Anders v.

California because there were no nonfrivolous arguments to be made

on appeal.

United States v.

Mitchell

653 F.

App’x 651

2016

Authored

majority

Criminal Law &

Procedure

Affirmed: Evidence obtained from a GPS device installed without a

warrant did not need to be excluded under the Fourth Amendment.

The officer acted reasonably in relying on existing precedent that

authorized him to install and monitor a GPS device.

Lawton v. Patton

Nos. 154022 & 154084, 2016

U.S. App.

LEXIS

11049

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings.

United States v.

Marshall

652 F.

App’x 719

2016

Authored

majority

Criminal Law &

Procedure

Affirmed: A court-imposed prohibition upon defendant affiliating with

known gangs and the requirement that he live in a home with a

surveillance system were properly imposed conditions of supervised

release. The conditions were reasonably related to the need to

protect the public and were specific to the defendant’s character.

El Encanto, Inc. v.

Hatch Chile Co.

825 F.3d

1161

2016

Authored

majority

Federal Courts;

Intellectual

Property

Reversed: District court erred in granting respondent’s motion to

quash a subpoena in a trademark suit because requesting a deposition

was not a necessary precondition to a document demand.

Galbreath v. Patton

654 F.

App’x 378

2016

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was untimely and did not qualify for equitable tolling.

CRS-10

Case Name

Citation

Year

Role

Subject

Holding

Sellers v. Cline

651 F.

App’x 804

2016

Authored

majority

Civil Liability

Affirmed: Damage claims against state correction officers acting in

their official capacity, which arose from an assault on an inmate by

two other inmates, were barred by Eleventh Amendment. The

correction officers were entitled to qualified immunity because there

was no evidence that their actions created substantial risk of harm to

the prisoner or that they were aware of and indifferent to that risk.

United Planners Fin.

Servs. of Am., L.P. v.

Sac & Fox Nation

654 F.

App’x 376

2016

Authored

majority

Federal Courts;

Indian Law

Affirmed: Appellant failed to exhaust its tribal court remedies and so

could not invoke federal jurisdiction.

Tong v. New Mexico

651 F.

App’x 798

2016

Authored

majority

Civil Rights

Affirmed: Federal officer defendants were entitled to remove the

plaintiff’s case to federal court because the claims arose from the

exercise of their official duties.

Chavez v. Colvin

654 F.

App’x 374

2016

Authored

majority

Public Benefits

Affirmed: Administrative law judge did not fail to provide adequate

reasons for denying Social Security disability benefits and

Supplemental Security Income payments.

Requena v. Roberts

650 F.

App’x 939

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right, as a disciplinary

decision imposed by prison officials was supported by sufficient

evidence of battery and attempted assault by the petitioner on a

prison guard.

Caring Hearts Pers.

Home Servs. v.

Burwell

824 F.3d

968

2016

Authored

majority

Administrative

Law; Public

Benefits

Vacated and remanded: Centers for Medicare & Medicaid Services

(CMS) inappropriately compelled a provider to repay government for

services rendered. CMS failed to apply the regulations in force at the

time the provider rendered the services, and the provider reasonably

believed its services were reasonable, necessary, and consistent with

the rules in effect at the time.

United States v.

Gomez-Olivas

650 F.

App’x 631

2016

Authored

majority

Criminal Law &

Procedure

Affirmed: The prisoner was precluded and ineligible to modify his

sentence under 18 U.S.C. §3582(c)(2) because he failed to raise the

issue on appeal and his sentence was based on a plea agreement and

not the U.S. Sentencing Guidelines.

CRS-11

Case Name

Citation

Year

Role

Subject

Holding

Craine v. NSF

647 F.

App’x 871

2016

Authored

majority

Federal Courts;

Labor &

Employment

Remanded: National Science Foundation’s order, which denied

petitioner’s claim that a university’s termination of his employment

constituted illegal retaliation for accusing colleagues of academic

misconduct, lacked sufficient analysis or reasoning for appellate

review.

Freres v. Xyngular

647 F.

App’x 861

2016

Authored

majority

Federal Courts;

Civil Liability

Affirmed: Under the invited error doctrine, the district court

correctly ruled that the plaintiff cannot challenge a putative error

when she had failed to object to proposed jury instructions

permitting fees as consequential damages and agreed that the jury

should be allowed to determine attorneys’ fees.

United States v.

Wallace

647 F.

App’x 842

2016

Authored

majority

Criminal Law &

Procedure

Affirmed: A typographical error in the indictment did not deny

defendant fair notice of the charges or prevent the government from

prosecuting the specific crime on which the grand jury indicted.

United States v.

Arthurs

647 F.

App’x 846

2016

Authored

majority

Criminal Law &

Procedure

Affirmed, remanded for sentencing: District court did not err or abuse

its discretion in instructing the jury that circumstantial evidence could

be considered and that voluntary intoxication was not a legal defense

against possession of a firearm by a felon. The district court also

permissibly issued a two-level enhancement in sentencing based on

the evidence presented at trial.

Harvey v. Segura

646 F.

App’x 650

2016

Authored

majority

Criminal Law &

Procedure

Affirmed: District court correctly determined that the prisoner failed

to allege any facts suggesting that the strip search was conducted in

an abusive fashion or with excessive force, and, accordingly, failed to

plead a claim under the Eighth Amendment. Further, the claims were

barred by sovereign immunity under the Eleventh Amendment for

prison officials acting in their official capacity.

Broughton v. Merit

Sys. Prot. Bd.

639 F.

App’x 574

2016

Authored

majority

Federal Courts

Affirmed: Plaintiff failed to satisfy Fed. R. Civ. P. 8 because she did not

adequately assert the basis for the court’s jurisdiction, provide a

short and plain statement of her claims, identify which claims were

asserted against which defendants, or allege specific facts as to how

any specific federal law was violated.

United States v.

Lancaster

646 F.

App’x 589

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right because he failed to

raise at trial claims of ineffective counsel.

CRS-12

Case Name

Citation

Year

Role

Subject

Holding

United States v. Taylor

639 F.

App’x 571

2016

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was time-barred.

Jordan v. Allbaugh

639 F.

App’x 569

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right because claims not

raised in district court are waived.

Johnson v. Okla. Dep’t

of Transp.

645 F.

App’x 765

2016

Authored

majority

Civil Rights;

Labor &

Employment

Affirmed: Former employee failed to establish a prima facie case of

racial discrimination, as the evidence provided a strong inference that

the employer’s explanation that plaintiff was dismissed for poor

performance was not pretexual. The state officials acting in official

capacity were protected from claims arising under 42 U.S.C. §1983.

Walton v. Powell

821 F.3d

1204

2016

Authored

majority

Federal Courts;

First

Amendment;

Civil Rights

Affirmed: A newly elected public official’s qualified immunity claim was

properly denied on summary judgment because a former public

employee presented sufficient evidence to support her political

association retaliation claim; the court on interlocutory appeal could

properly assess the facts de novo and not accept as true the facts the

district court determined a reasonable jury could find at trial.

Kontgis v. Salt Lake

City Corp.

645 F.

App’x 750

2016

Authored

majority

Federal Courts

Affirmed: City ordinance limiting the standard of review of the city’s

employee appeals board did not expressly conflict with the state

statutory law that provides a discharged employee a right to appeal,

and the employee’s due process rights were not violated as a result

of the discharge.

Garrett v. Branson

Commerce Park

Cmty. Improvement

Dist.

645 F.

App’x 710

2016

Authored

majority

Federal Courts;

Contracts

Affirmed: Plaintiffs’ claim that their conditional guarantees were based

on unlawfully discriminatory contracts due to their marital status was

properly dismissed because the claim was time-barred under the

Equal Credit Opportunity Act.

Gilyard v. Chrisman

644 F.

App’x 863

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right, as his complaints

were untimely and no basis existed for statutory or equitable tolling.

United States v. Reed

644 F.

App’x 847

2016

Authored

majority

Federal Courts

Affirmed: District court lacked jurisdiction to revise a mandate from

the court of appeals that denied the motion to supplement the

appellate record, and the reviewing appellate panel similarly lacked

the power to revise the ruling of a previous panel.

CRS-13

Case Name

Citation

Year

Role

Subject

Holding

Estate of Bleck v. City

of Alamosa

643 F.

App’x 754

2016

Authored

majority

Civil Liability

Affirmed: Plaintiff failed to establish municipal liability for a claim that

police officers used excessive force when entering a hotel room with

their guns drawn. The officers drew their guns in reasonable

response to a counselor’s report that his patient was holed up in the

room, intoxicated, suicidal, and possibly armed. Further, the court

properly denied municipal liability for a gunshot wound that resulted

from the officer’s failure to reholster this gun before tackling the

plaintiff, as the accident was not the result of faulty training.

Vreeland v. Zupan

644 F.

App’x 812

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings when the court denied his bail.

Du Merac v. Colo. Sch.

of Mines

643 F.

App’x 709

2016

Authored

majority

Labor &

Employment;

Civil Rights

Affirmed: Petitioner had not shown a prima facie case of

discrimination by the school for suspending him from work after a

meritorious sexual harassment claim was brought against him, and

the petitioner also had not shown that the school’s proffered reasons

for the suspension were pretextual.

Gordon v. Farris

644 F.

App’x 804

2016

Authored

majority

Habeas

Affirmed: The petitioner-prisoner failed to exhaust state

administrative remedies and establish good cause for his procedural

defaults in state court; his petition for federal habeas relief

challenging a state court petition was untimely.

Robinson v. Estrada

637 F.

App’x 531

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right because he

repeatedly disregarded court deadlines without a colorable excuse.

Gilkey v. Marcantel

637 F.

App’x 529

2016

Authored

majority

Federal Courts;

Criminal Law &

Procedure

Affirmed: Claims were barred by the doctrine of res judicata because

the prisoner admitted that both suits involved the same alleged

“denial of classification” of confinement after segregation ended, and

they each were premised on the same alleged violation of a prison

policy providing for classification review within five days.

United States v. Stout

637 F.

App’x 528

2016

Authored

majority

Criminal Law &

Procedure

Affirmed: District court did not commit plain error when it calculated

the U.S. Sentencing Guidelines’ range of 5-11 months and properly

considered the sentencing factors, applied those factors in imposing

its sentence, and provided specific reasons supported by

uncontroverted evidence for issuing a sentence above the Guidelines’

range.

CRS-14

Case Name

Citation

Year

Role

Subject

Holding

United States v.

Hinson

637 F.

App’x 526

2016

Authored

majority

Criminal Law &

Procedure

Affirmed: District court correctly concluded that no relief is available

to reduce the sentence because the binding U.S. Sentencing

Guidelines prevented the court from reducing a defendant’s sentence

to a term below the amended Guidelines’ range.

Lopez v. Roark

637 F.

App’x 520

2016

Authored

majority

Criminal Law &

Procedure

Affirmed: Prisoner’s Eighth Amendment constitutional rights were not

violated by housing him with the general prison population, as there

was no evidence that the prison officials were deliberately indifferent

to his safety. Further, the First Amendment claim that the defendants

retaliated against him failed because the prison officials afforded

considerable process before he was found guilty of a drug infraction.

Fry v. Am. Home

Assur. Co.

636 F.

App’x 764

2016

Authored

majority

Contracts;

Insurance

Affirmed: Summary judgment in favor of an insurance company was

affirmed because the insurance policy did not cover death resulting

from the employer’s alleged knowing misconduct; the policy covered

only bodily injury by accident.

United States v.

Hernandez-Martinez

637 F.

App’x 512

2016

Authored

majority

Criminal Law &

Procedure

Appeal dismissed: Criminal appeal was dismissed pursuant to Anders v.

California because there were no nonfrivolous arguments to be made

on appeal.

United States v. Hai

Gan

641 F.

App’x 833

2016

Authored

majority

Criminal Law &

Procedure

Affirmed: Government presented sufficient evidence at trial to convict

the defendant of transferring false identification documents or aiding

and abetting their transfer.

Aslan v. Colvin

637 F.

App’x 509

2016

Authored

majority

Public Benefits

Affirmed: Denial of Social Security disability benefits was affirmed

because the claimant failed to point to any medical records

confirming that he suffered from a presumptive medical condition;

the residual functional capacity determination was supported by

substantial evidence; and the administrative law judge did not err in

relying on the Medical-Vocational Guidelines.

Wahpekeche v. Colvin

640 F.

App’x 781

2016

Authored

majority

Public Benefits

Affirmed: Substantial evidence, including inconsistencies between the

claimant’s allegations and the medical records, supported the

administrative law judge’s adverse credibility finding in a Social

Security disability benefits case; the claimant’s residual functional

capacity assessment adequately specified the frequency of her need

to alternate sitting and standing.

United States v.

Brooks

634 F.

App’x 669

2016

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was untimely and did not qualify for equitable tolling.

CRS-15

Case Name

Citation

Year

Role

Subject

Holding

United States v.

Anderson

634 F.

App’x 666

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make substantial

showing that he was denied constitutionally effective counsel.

Gambrill v. Unified

Gov’t of Wyandotte

Cty./Kan. City

636 F.

App’x 981

2016

Authored

majority

Federal Courts

Reversed and dismissed: After supplemental briefing, the court

determined that recent precedent controlled, and it reversed the

district court’s denial of qualified immunity to the individual

defendants and dismissed the Unified Government’s appeals for lack

of jurisdiction.

United States v. Yazzie

633 F.

App’x 703

2016

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make substantial

showing that he was denied constitutionally effective counsel.

Jordanoff v. Lester

628 F.

App’x 624

2016

Authored

majority

Federal Courts

Affirmed: District court committed no error in dismissing claims

against the sheriff as outside the statute of limitations and in

dismissing claims against the prosecutor on the basis of immunity.

United States v. RubioAyala

628 F.

App’x 622

2016

Authored

majority

Criminal Law &

Procedure

Affirmed: District court properly recalculated the defendant’s

sentencing range after the sentencing commission amended the U.S.

Sentencing Guidelines applicable to his crime.

Espinoza v. Ark. Valley

Adventures, LLC

809 F.3d

1150

2016

Authored

majority

Contracts; Civil

Liability

Affirmed: Summary judgment in favor of a rafting company in a

negligence case was affirmed because the release signed by the

deceased did not violate Colorado’s public policy that allows private

parties to assume certain risks associated with recreational activity.

Feinberg v. Comm’r

808 F.3d

813

2015

Authored

majority

Federal Courts;

Civil Rights; Tax

Petition denied: In an ongoing tax court case involving marijuana

business deductions, a writ of mandamus was not warranted because

the petitioners, who alleged that an order to produce the requested

discovery violated the Fifth Amendment against self-incrimination,

were not facing irreparable injury without an immediate remedy and

they could appeal the final tax court judgment.

Ramos-Hernandez v.

Lynch

624 F.

App’x 677

2015

Authored

majority

Immigration

Petition denied: Immigration judge’s factual finding about the nature of

the alien petitioner’s former employment with a company associated

with the Guatemalan government, which was relevant to the

credibility of the alien’s claim that he suffered past persecution in that

country, was legally sustainable because it was based on the

substantial record evidence and not premised on a factual mistake.

Robinette v. Fender

624 F.

App’x 664

2015

Authored

majority

Federal Courts

Affirmed: Arguments on appeal were not inadequately presented, and

independent scrutiny of the record affirmed the district court’s

disposition.

CRS-16

Case Name

Citation

Year

Role

Subject

Holding

Fogg v. Colvin

622 F.

App’x 767

2015

Authored

majority

Public Benefits;

Administrative

Law

Affirmed: The administrative law judge did not err in denying

petitioner’s request for disability benefits and supplemental security

income payments; the petitioner’s admission that he is capable of

performing heavy work negated a presumption that older claimants

with limited education and work experience and severe impairments

should be found disabled.

McClaflin v. Burd

622 F.

App’x 769

2015

Authored

majority

Federal Courts

Affirmed: Plaintiff failed to present any properly preserved arguments

on appeal.

Jemaneh v. Univ. of

Wyoming

622 F.

App’x 765

2015

Authored

majority

Federal Courts

Affirmed: Even assuming (without granting) the district court erred by

permitting successive Fed. R. Civ. P. 12(b) motions to dismiss, the

pleadings failed to state a claim.

United States v.

Falcon-Sanchez

622 F.

App’x 766

2015

Authored

majority

Criminal Law &

Procedure

Affirmed: District court properly recognized that it lacked authority

to revise the defendant’s sentence, which was based on his plea

agreement and not on the U.S. Sentencing Guidelines’ range that had

been lowered by the Sentencing Commission.

United States v.

Makkar

810 F.3d

1139

2015

Authored

majority

Criminal Law &

Procedure;

Federal Courts

Vacated and remanded: Despite defendant’s failure to object, the jury

instructions given at trial resulted in plain error, because the

government conceded that it did not prove the requisite mens rea for

a violation of the Controlled Substances Act or the Analogue Act,

and the district court abused its discretion by excluding testimony

that was relevant to defendants’ mens rea.

United States v. Davis

622 F.

App’x 758

2015

Authored

majority

Criminal Law &

Procedure

Remanded: Government conceded that the condition prohibiting

Internet use, which the district court had imposed on the criminal

defendant as a condition of his supervised released, was in error

based on judicial precedent.

Duran v. Marathon

Asset Mgmt., LP

621 F.

App’x 553

2015

Authored

majority

Federal Courts;

Civil Liability;

Contracts

Affirmed: District court appropriately exercised diversity jurisdiction

because the amount in controversy exceeded the statutory

requirement when punitive damages were considered, but the

complaint was properly dismissed because a forum selection clause in

an agreement between the parties specified that the venue for

disputes would be New York state court.

CRS-17

Case Name

Citation

Year

Role

Subject

Holding

United States v.

Avalos-Chavez

621 F.

App’x 552

2015

Authored

majority

Criminal Law &

Procedure

Affirmed: Defendant’s sentencing could not be revised, because the

district court anticipated the amended U.S. Sentencing Guidelines’

range at his original sentencing hearing, and the defendant received a

sentence well below the range.

United States v.

Camargo-Chavez

630 F.

App’x 835

2015

Authored

majority

Criminal Law &

Procedure

Affirmed: The denial of appellant’s motion to suppress was affirmed

because officers had probable cause to open the sealed case of beer

based on evidence discovered from the consensual search of the rest

of the vehicle.

De Niz Robles v.

Lynch

803 F.3d

1165

2015

Authored

majority

Immigration;

Administrative

Law

Petition for review granted and case remanded for further administrative

proceedings: A presumption of prospectivity that applies whenever an

agency exercises delegated legislative policymaking authority, along

with due process and equal protection concerns, prevented the

retroactive application of a decision by Board of Immigration Appeals

(BIA) concerning the interplay between two federal immigration

statutes, when the effect of that decision would be to deny the

availability of relief to a previously eligible alien who applied for relief

prior to the decision’s issuance.

LTF Real Estate Co. v.

Expert S. Tulsa, LLC

(In re Expert South

Tulsa, LLC)

619 F.

App’x 779

2015

Authored

majority

Bankruptcy;

Contracts

Affirmed: Funds placed in escrow pursuant to a contract prior to

debtor filing for bankruptcy were not part of the bankruptcy estate.

Chapman v. Lampert

616 F.

App’x 889

2015

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

Adams v. Colvin

616 F.

App’x 393

2015

Authored

majority

Public Benefits

Affirmed: In denying a claim for Social Security disability benefits, the

administrative law judge had sufficient evidence to support findings

regarding the claimant’s residual functional capacity to return to

work as an electronic scanner operator, and the claimant failed to

meet her burden to establish that she is unable to perform her past

relevant work.

Rader v. Comm’r

616 F.

App’x 391

2015

Authored

majority

Federal Courts

Affirmed: U.S. Tax Court committed no clear error when it held that

the defendant was liable for unpaid taxes and penalties.

CRS-18

Case Name

Citation

Year

Role

Subject

Holding

Muathe v. Fifth Third

Bank

627 F.

App’x 732

2015

Authored

majority

Federal Courts

Affirmed: District court did not abuse its discretion in determining

that the plaintiff’s complaint failed to provide the defendants with fair

notice of the claims against them and the relevant facts underlying

those claims because, among other things, the plaintiff failed to

connect alleged facts in any fairly discernible way to the legal claims.

Perez-Carrera v.

Stancil

616 F.

App’x 371

2015

Authored

majority

Criminal Law &

Procedure

Affirmed: Prisoner was not entitled to relief under 28 U.S.C. §2241

because he could not establish that 28 U.S.C. §2255’s remedy was

inadequate or ineffective to test the legality of his detention.

Barrera-Estrada v.

United States

616 F.

App’x 371

2015

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel when

he entered his guilty plea.

United States v. Spring

614 F.

App’x 386

2015

Authored

majority

Criminal Law &

Procedure

Affirmed: Petitioner was not entitled to a writ of audita querela to

reverse his federal sentence, as other remedies supplied the

exclusive means for petitioner to challenge his conviction and

sentence collaterally.

United States v. Handy

614 F.

App’x 379

2015

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

United States v.

McAlpine

613 F.

App’x 766

2015

Authored

majority

Criminal Law &

Procedure

Affirmed: There was no error in the district court’s decision not to

reduce the defendant’s sentence as a result of a change in the U.S.

Sentencing Guidelines when the defendant was already given a

sentence below the recommended guideline range.

Stauffer v. Blair

613 F.

App’x 760

2015

Authored

majority

Federal Courts

Affirmed: Court lacked subject matter jurisdiction to entertain federal

suits that amount to appeals of state-court judgments.

Patriot Mfg., LLC v.

Hartwig, Inc.

613 F.

App’x 753

2015

Authored

majority

Federal Courts

Affirmed: Appellant failed to argue that estoppel was unwarranted

when responding to the motion for summary judgment in district

court and forfeited his right to challenge the judgment.

United States v. Butler

611 F.

App’x 517

2015

Authored

majority

Criminal Law &

Procedure

Affirmed: Prisoner waived his challenge to the district court’s decision

to deny his request to revise his sentence because he failed, among

other things, to state his basis for challenging the court’s decision.

CRS-19

Case Name

Citation

Year

Role

Subject

Holding

Gen. Steel Domestic

Sales, LLC v. Chumley

627 F.

App’x 682

2015

Authored

majority

Intellectual

Property; Civil

Liability

Affirmed: District court did not err in ruling that General Steel was

entitled to relief under the Lanham Act after its competitor,

Armstrong, produced false advertising to boost its reputation and

give it a competitive edge. Nor did the court err in ordering the

defendant to disgorge profits made during that period, and placing

the burden on the defendant to show which profits weren’t

attributable to its Lanham Act violations.

Carlson v. Pryor

611 F.

App’x 514

2015

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was untimely and did not qualify for equitable tolling.

Serna v. Commandant

608 F.

App’x 713

2015

Authored

majority

Criminal Law &

Procedure

Affirmed: District court correctly held that the prisoner had not

demonstrated a lawful cause excusing his failure to pursue his

present claims before the military’s appellate courts, a prerequisite to

seeking habeas relief in federal court.

United States v.

Mendez

618 F.

App’x 930

2015

Authored

majority

Criminal Law &

Procedure

Affirmed: The court lacked subject matter jurisdiction for ineffective

assistance of counsel claim given that the appellant failed to seek and

obtain a certificate of appealability. There was no error in the

conviction based on the supporting evidence and the jury

instructions, because the defendant’s counsel expressly stipulated to

the instruction in question or the instructions were based on judicial

precedent.

United States v.

Mackay

610 F.

App’x 797

2015

Authored

majority

Criminal Law &

Procedure

Affirmed: In a remanded case, the district court’s order vacating

defendant’s two convictions for distributing a controlled substance

that resulted in death was affirmed because, while the appellate

mandate allowed the district court to reconsider only defendant’s

sentence, not his convictions, the Supreme Court’s intervening

decision in Burrage v. United States modified the controlling legal

authority.

Energy & Env’t Legal

Inst. v. Epel

793 F.3d

1169

2015

Authored

majority

Environmental

Law

Affirmed: Colorado law that required electricity generators to ensure

that 20% of electricity sold to state consumers comes from

renewable sources did not violate the Dormant Commerce Clause;

the law did not involve a discriminatory price control statute, a

discriminatory act linking prices in Colorado to those paid out of

state, or other types of price discrimination against out-of-state

entities.

CRS-20

Case Name

Citation

Year

Role

Subject

Holding

Loveridge v. Hall (In re

Renewable Energy

Dev. Corp.)

792 F.3d

1274

2015

Authored

majority

Bankruptcy; Civil

Liability; Federal

Courts

Vacated and remanded: District court’s decision to send to an Article I

bankruptcy court a lawsuit that alleged that a bankruptcy trustee

breached professional duties was unconstitutional, as the parties

were entitled to have the case resolved by an Article III court. None

of the state law claims necessarily could have been resolved in the

bankruptcy claims allowance process, and the plaintiff did not consent

to suit in a non-Article III court.

Elnicki v. Kansas

609 F.

App’x 542

2015

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

United States v.

Jenkins

608 F.

App’x 710

2015

Authored

majority

Criminal Law &

Procedure

Appeal dismissed: Because the prisoner pled guilty to a federal drug

offense and expressly waived his right to appeal any sentence up to

the statutory maximum, he could not appeal a certain condition of

supervised release.

United States v.

Fishman

608 F.

App’x 711

2015

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings.

Mata v. Jackson Cty.

Third Judicial Dist.

Court

611 F.

App’x 513

2015

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings.

Ute Indian Tribe of the

Uintah & Ouray

Reservation v. Utah

790 F.3d

1000

2015

Authored

majority

Indian Law;

Criminal Law &

Procedure

Reversed: A tribe was entitled to temporarily enjoin state and county

officials from prosecuting tribal members for crimes allegedly

committed on Indian land. The tribe’s success on the merits was

likely based on previous judicial decisions that determined tribal land

boundaries; a threat to tribal sovereignty was irreparable harm; on

balance the harms to tribal self-government outweigh the state and

county’s interest in prosecuting tribal members on tribal land; and

the Anti-Injunction Act authorized enjoining a state court proceeding

to effectuate a previous federal judgment.

CCPS Transp., LLC v.

Sloan

611 F.

App’x 931

2015

Authored

majority

Federal Courts

Appeal dismissed: District court improperly issued a Fed. R. Civ. P.

54(b) certification for interlocutory appeal of a declaration of rights

under a contested easement, because Rule 54(b) permits certification

only for single claims in multiclaim cases. No other cause of action

remained in the case because the plaintiffs’ request for other

remedies arising from the same alleged violation are not considered

separate claims.

CRS-21

Case Name

Citation

Year

Role

Subject

Holding

Backcountry Hunters

& Anglers v. U.S.

Forest Serv.

612 F.

App’x 934

2015

Authored

majority

Environmental

Law; Federal

Courts

Dismissed: The petition for review was dismissed for lack of standing

because the advocacy organization seeking to reduce vehicle access

to a national park would not be redressed by a favorable decision.

Beers v. Maye

611 F.

App’x 933

2015

Authored

majority

Criminal Law &

Procedure

Affirmed: District court properly denied the prisoner’s request to

credit against his federal sentence the time he spent in Nebraska

state prisons because federal sentences presumptively run

consecutively to (not concurrently with) state prison terms.

United States v.

Gutierrez-Carranza

604 F.

App’x 750

2015

Authored

majority

Criminal Law &

Procedure

Affirmed: District court did not abuse its discretion when it imposed a

term of supervised release upon defendant, despite the likelihood

that defendant would be deported or extradited to Mexico after his

incarceration, because the record showed that he previously defied

one deportation order and that he possesses a violent criminal

history.

Kenney v. Oklahoma

601 F.

App’x 761

2015

Authored

majority

Federal Courts;

Labor &

Employment

Affirmed: The complaint failed to set forth factual allegations from

which the court could infer some plausible basis for relief.

Brown v. McCollum

600 F.

App’x 630

2015

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings.

Farris v. Frazier

599 F.

App’x 851

2015

Authored

majority

Civil Rights

Affirmed: Prisoner failed to exhaust administrative remedies for any of

his claims, as required by the Prison Litigation Reform Act of 1995,

through the Oklahoma Department of Corrections grievance

process.

United States v.

Rogers

599 F.

App’x 850

2015

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

Chavez v. Franco

609 F.

App’x 527

2015

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

Franco v. Bd. of Cty.

Comm’rs

609 F.

App’x 957

2015

Authored

majority

Civil Rights

Affirmed: Plaintiff’s false imprisonment claims against the Board of

County Commissioners and public employees were properly

dismissed on summary judgment because he failed to show they

intentionally confined him with knowledge that they lacked lawful

authority to do so.

CRS-22

Case Name

Citation

Year

Role

Subject

Holding

United States v.

Herrera

782 F.3d

571

2015

Authored

majority

Criminal Law &

Procedure

Reversed and remanded: District court erred in granting the motion to

suppress because its factual findings about misstatements in the

warrant application were erroneous, and the court did not assess

whether, without the alleged misstatements, probable cause

supported the warrant.

ACAP Fin., Inc. v. U.S.

SEC

783 F.3d

763

2015

Authored

majority

Administrative

Law; Civil

Liability

Petition for review denied: Fines levied by Financial Industry Regulatory

Authority (and sustained by the Securities and Exchange Commission

[SEC]) against a penny stock brokerage firm, as well as the firm’s

head trader and compliance manager, for violating federal securities

laws were not excessive for exceeding the commission the firm

earned on its unlawful stock sales, given that profit is only one factor

the SEC considers when imposing a sanction. Additionally, the

trader’s six-month suspension from the securities industry—allowed

for in egregious cases—was permissible because the SEC could

expand its definition of egregious in its review, and the sanction was

comparable to similar cases.

Alejandre-Gallegos v.

Holder

598 F.

App’x 604

2015

Authored

majority

Immigration;

Federal Courts

Petition for review dismissed: Petitioner’s counsel’s failure to comply

with several federal rules of appellate procedure warranted dismissal

of the petition to review the Board of Immigration Appeal’s decision

to deny cancellation of removal. Additionally, the court clerk was

directed to initiate disciplinary hearings against counsel.

Vigil v. Morgan

598 F.

App’x 594

2015

Authored

majority

Criminal Law &

Procedure

Affirmed: District court did not err when it dismissed a claim under

the Eighth Amendment for inadequate medical care because the

prison officials’ actions that allegedly delayed his access to treatment

for hemorrhoids did not exhibit “deliberate indifference” or result in

substantial harm.

David v. Sirius

Comput. Sols., Inc.

779 F.3d

1209

2015

Authored

majority

Civil Liability

Remanded: Plaintiff who was awarded damages relating to economic

losses or injuries for a negligent misrepresentation claim was entitled

to prejudgment interest because state statute permitted interest in

any action seeking compensation for personal injury without

consideration to nature of compensatory damages the jury awarded.

CRS-23

Case Name

Citation

Year

Role

Subject

Holding

Walters v. Colvin

604 F.

App’x 643

2015

Authored

majority

Public Benefits

Affirmed: Substantial evidence supported administrative law judge’s

adverse credibility determination for Social Security disability benefits

because, among other things, claimant did not seek treatment for his

neurological disorder until two years after diagnosis; claimant’s claims

of illness were not supported by medical evidence; and there was

evidence that he went camping, canoeing, and rock climbing despite

his claim of total disability.

United States v. Scott

594 F.

App’x 560

2015

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not present newly

discovered evidence suggesting his innocence or identify a new rule

of constitutional law retroactively applicable to his case to warrant a

second or successive collateral challenge to his sentence.

Pippin v. Elbert Cty.

604 F.

App’x 636

2015

Authored

majority

First

Amendment

Affirmed: District court’s entry of summary judgment in favor of

county commissioners was affirmed because the commissioners had

a reasonable basis for seeking the protective order and did not

infringe on the plaintiff’s First Amendment rights.

Calvert v. Denham

594 F.

App’x 545

2015

Authored

majority

Criminal Law &

Procedure

Affirmed: District court did not err in its calculations for the

prisoner’s good time credit to determine his release date.

Macias v. Holder

590 F.

App’x 829

2015

Authored

majority

Immigration

Affirmed: The Board of Immigration Appeals correctly denied as

untimely the petitioner’s motion to reopen removal proceedings to

adjust status or for deferred action, and equitable tolling was not

warranted because he had not shown that he was prevented from

filing in a timely fashion.

Tarpley v. Colvin

601 F.

App’x 641

2015

Authored

majority

Public Benefits

Affirmed: Claimant was properly denied Social Security disability

benefits because substantial evidence supported the administrative

law judge’s decision to reject the opinions of claimant’s treating

physicians, and the judge did not err in affording significant weight to

the opinion of the nontreating agency physician.

Banks v. Am. Baptist

Churches

594 F.

App’x 544

2015

Authored

majority

Federal Courts

Affirmed: District court did not err when it dismissed appellants’

complaint for failure to state a claim, as the appellants’ briefs failed to

list any issues for appeal, did not explain why the district court erred

in dismissing their claims, and lacked citations to authority.

CRS-24

Case Name

Citation

Year

Role

Subject

Holding

Miller v. Scott

592 F.

App’x 747

2015

Authored

majority

Civil Rights

Affirmed: Prisoner failed to exhaust administrative remedies through

the Oklahoma Department of Corrections (ODOC) grievance

process for his claims. The ODOC did not violate the prisoner’s

constitutional rights when the prison chaplain denied his requests for

a halal or a kosher diet after failing to contest the finding that the

prisoner’s voluntary food purchases at the prison canteen belied his

claim of a sincere religious scruple about his diet.

Lee v. Maye

589 F.

App’x 416

2015

Authored

majority

Criminal Law &

Procedure

Appeal dismissed: District court did not err in dismissing the

prisoner’s action as frivolous; the conclusory assertions in the filings

as to the conditions of his confinement were baseless.

United States v.

Denson

775 F.3d

1214

2014

Authored

majority

Criminal Law &

Procedure

Affirmed: Based on the circumstances of the case, police officers

lawfully entered the defendant’s home and conducted a protective

sweep such that the firearms seized during the sweep did not need

to be suppressed. Notwithstanding the officers’ warrantless use of

Doppler radar (before entering the home) to detect human breathing

and movement inside the home, the officers had specific and

articulable reasons to initiate a protective sweep. Finally, the officers

had probable cause to believe that the seized firearms were

contraband.

Myers v. Knight

Protective Serv.

774 F.3d

1246

2014

Authored

majority

Labor &

Employment;

Civil Rights;

Public Benefits

Affirmed: Plaintiff’s representations in his application for Social

Security disability benefits belied his claim of discrimination under the

Americans with Disabilities Act, because they showed he could not

perform the essential job functions of an armed security guard with

or without a reasonable accommodation.

Brown v. Metro. Tulsa

Transit Auth.

588 F.

App’x 849

2014

Authored

majority

Federal Courts

Affirmed: The record supported the district court’s determination

that the plaintiff failed to offer proof of anything more than nominal

damages related to his overturned ban from riding public buses.

United States v. Truby

588 F.

App’x 847

2014

Authored

majority

Criminal Law &

Procedure

Appeal dismissed: Criminal appeal was dismissed pursuant to Anders v.

California because there were no nonfrivolous arguments to be made

on appeal.

CRS-25

Case Name

Citation

Year

Role

Subject

Holding

United States v. Storey

595 F.

App’x 822

2014

Authored

majority

Criminal Law &

Procedure

Affirmed: Fourth Amendment did not protect against searches

performed by private FedEx employees when the state did not

coerce or demand the search. The court did not commit sentencing

error by holding the defendant responsible for all the drugs found

inside the packages or by imposing a sentence within the range

contemplated under the U.S. Sentencing Guidelines.

Bruton v. United

States

587 F.

App’x 504

2014

Authored

majority

Federal Courts

Affirmed: The appellant’s brief failed to directly address the district

court’s ruling and did not identify any defect in it.

Green v. Patton

587 F.

App’x 503

2014

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings.

United States v.

Sabillon-Umana

772 F.3d

1328

2014

Authored

majority

Criminal Law &

Procedure

Remand for resentencing: District court erred by starting with a

conclusion about the appropriate U.S. Sentencing Guidelines range

for the criminal defendant involved in a drug conspiracy before it had

considered the facts surrounding the defendant’s role in the

conspiracy, which properly inform an assessment of the appropriate

guidelines range. The district court also erroneously concluded that

the government, rather than the court, has the power to determine

the appropriate sentencing reward for a defendant who provided

assistance to the government.

Mattox v. McKune

588 F.

App’x 833

2014

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

United States v. Taylor

585 F.

App’x 751

2014

Authored

majority

Criminal Law &

Procedure

Affirmed: District court did not err in determining sentencing based

on the defendant’s history, the need to protect the public, and other

appropriate considerations under existing law.

Yarbary v. Martin,

Pringle, Oliver,

Wallace & Bauer, LLP

584 F.

App’x 918

2014

Authored

majority

Federal Courts

Affirmed: District court did not err in dismissing the complaint

because the plaintiff failed to state a claim supported by facts even

after four rounds of amendment.

Gregory v. Denham

581 F.

App’x 728

2014

Authored

majority

Habeas

Certificate of appealability denied: Petitioner failed to petition the

appropriate court of appeals.

CRS-26

Case Name

Citation

Year

Role

Subject

Holding

Nowlin v. United

States

581 F.

App’x 722

2014

Authored

majority

Criminal Law &

Procedure;

Indian Law;

Habeas

Affirmed: Writ of coram nobis to set aside the petitioner’s conviction

was denied because there was sufficient evidence that confirmed his

status as an “Indian” to support the federal assault conviction by an

“Indian” against “another Indian or other person” within “Indian

country.”

Lee v. Maye

581 F.

App’x 721

2014

Authored

majority

Habeas

Certificate of appealability denied: Petitioner failed to petition the

appropriate court of appeals.

Silva v. Colvin

580 F.

App’x 678

2014

Authored

majority

Public Benefits;

Civil Rights

Affirmed: Application of res judicata was not flawed; providing notice

of time to appeal only in English did not violate due process because

petitioner’s inability to understand the notice was readily remediable

by obtaining an accurate translation at her Social Security office.

Veren v. United States

575 F.

App’x 841

2014

Authored

majority

Federal Courts

Affirmed: Affective disorder and clinical depression were not sufficient

to establish mental incompetence under the standard required to toll

the statute of limitations for the plaintiff’s damages suit.

Garcia v. Lind

574 F.

App’x 857

2014

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was time-barred.

Morgan v. Addison

574 F.

App’x 852

2014

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was time-barred.

McKay v. Hayes

577 F.

App’x 848

2014

Authored

majority

Federal Courts

Affirmed: District court did not err in dismissing the case because the

appellant failed to respond to the motion for summary judgment.

Kobel v. Lansing Corr.

Facility

577 F.

App’x 844

2014

Authored

majority

Criminal Law &

Procedure

Affirmed: District court did not err in denying request to reinstate

claims because, even if the plaintiff did not receive court notices to

correct his complaint after changing addresses, nothing prevented

him from apprising the court of his new location or inquiring about

his lawsuit.

Teamsters Local Union

No. 455 v. NLRB

765 F.3d

1198

2014

Authored

majority

Labor &

Employment;

Administrative

Law

Petition for review denied: Employer’s threat to hire permanent

replacements during a lockout resulting from stalled collectivebargaining negotiations violated 29 U.S.C. §158(a)(1), but, because

the employer did not follow through on the threat, the National

Labor Relations Board (NLRB) was not required to hold the lockout

unlawful and award back pay. Rather, the NLRB’s order directing the

company to desist from future threats and posting a notice promising

the same was sufficient.

CRS-27

Case Name

Citation

Year

Role

Subject

Holding

Nouri v. Farris

585 F.

App’x 944

2014

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was untimely and did not qualify for equitable tolling.

Oliver v. Cline

573 F.

App’x 814

2014

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was untimely and did not qualify for equitable tolling.

United States v. LeeSpeight

576 F.

App’x 801

2014

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

Entek GRB, LLC v.

Stull Ranches, LLC

763 F.3d

1252

2014

Authored

majority

Environmental

Law

Vacated and remanded: Mineral rights leaseholder could cross the

surface owner’s estate to service a well in an adjacent surface estate

owned by the government, because, pursuant to a unitization

agreement, the leaseholder could reenter and occupy so much of the

surface in the unitized area as might be reasonably incident to

extracting minerals from the unit.

MHC Mut. Conversion

Fund, L.P. v. Sandler

O’Neill & Partners,

L.P.

761 F.3d

1109

2014

Authored

majority

Civil Liability;

Federal Courts

Affirmed: Plaintiff company failed to state a claim for relief because the

security issuers’ failed market predictions were insufficient to allege

that they made false or misleading statements under Sections 11 and

10(b) of the Securities Act of 1933.

Griffin v. Smith

572 F.

App’x 625

2014

Authored

majority

Criminal Law &

Procedure

Affirmed: District court did not err in dismissing prisoner’s complaints

for failure to state a claim.

Chavez-Vasquez v.

Holder

572 F.

App’x 627

2014

Authored

majority

Immigration;

Federal Courts

Petition for review denied: Petitioner became subject to removal upon

his conviction, and his pending motion in state court seeking to

vacate his conviction does not preclude his removal.

Jones v. Kansas

572 F.

App’x 648

2014

Authored

majority

Civil Rights;

Federal Courts

Affirmed: District court correctly denied the plaintiff’s motion to

reconsider under Fed. R. Civ. P. 60(b) because the motion did not

identify exceptional circumstances warranting relief and, instead,

tried to relitigate the merits of his 42 U.S.C. §1983 suit.

United States v.

Ramsey

572 F.

App’x 604

2014

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was untimely and did not qualify for equitable tolling.

United States v.

Hendrix

571 F.

App’x 661

2014

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

CRS-28

Case Name

Citation

Year

Role

Subject

Holding

Trugreen Cos., LLC v.

Mower Bros.

570 F.

App’x 775

2014

Authored

majority

Labor &

Employment;

Contracts;

Federal Courts

Affirmed: District court correctly denied attorneys’ fees and costs to

former employees of TruGreen based in Utah, because their new

employer paid for those costs and TruGreen, by contract, was liable

only for costs that the employees incurred in the lawsuit. Further,

the court did not abuse its discretion in awarding the former

employees based in Idaho only the amount they specified as the costs

their attorneys paid toward their defense and not fees the attorneys

otherwise charged.

Van De Weghe v.

Chambers

569 F.

App’x 617

2014

Authored

majority

Civil Rights;

Federal Courts

Affirmed: Officers were entitled to qualified immunity on charges of

malicious prosecution because probable cause existed to pursue at

least one charge against the plaintiff, and the plaintiff did not identify

any clearly established law suggesting that a claim for malicious

prosecution is actionable when other additional charges arising from

the same set of facts are not supported by probable cause. Also, the

district attorney was entitled to Eleventh Amendment immunity as an

arm of the state.

Ali v. Wingert

569 F.

App’x 562

2014

Authored

majority

Civil Rights; First

Amendment

Affirmed: Prisoner’s right to exercise his sincere religious beliefs

under Religious Land Use and Institutionalized Persons Act was not

violated by prison mail room staff, who required him, when sending

and receiving mail, to use the name he had when he was initially

incarcerated alongside the religious name he adopted thereafter.

Barrett v. Salt Lake

City

754 F.3d

864

2014

Authored

majority

Civil Rights;

Labor &

Employment

Affirmed in part, vacated and remanded in part: The county could not

dispute the jury’s finding of unlawful employment retaliation using the

framework set forth by the Supreme Court in McDonnell Douglas

Corp. v. Green; intervening Supreme Court case law did not upset the

jury’s verdict; and the district court did not abuse its discretion in

ordering the county to reinstate the plaintiff’s preretaliatory

demotion pay grade as an equitable remedy. However, the district

court’s award of fees incurred during an optional, internal grievance

process was improper because that process was not a prerequisite

to suit.

Carr v. Miller

563 F.

App’x 656

2014

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was untimely and did not qualify for equitable tolling.

CRS-29

Case Name

Citation

Year

Role

Subject

Holding

Hwang v. Kan. State

Univ.

753 F.3d

1159

2014

Authored

majority

Civil Rights;

Labor &

Employment

Affirmed: Plaintiff’s former employer did not violate the Rehabilitation

Act by refusing to allow her to take more than six months of sick

leave because an absence of that length would not allow her to

perform her essential job functions (teaching at a university) and did

not qualify as a reasonable accommodation for her disability (cancer

treatment).

United States v. Reese

559 F.

App’x 777

2014

Authored

majority

Civil Rights;

Criminal Law &

Procedure

Reversed and remanded: Government acknowledged that plaintiff’s

federal conviction for being a felon unlawfully in possession of

firearms was unsustainable because his civil rights had been restored,

including the right to vote, serve on a jury, seek public office, and

possess firearms under state law.

United States v. Chon

559 F.

App’x 779

2014

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings, nor was a successive collateral proceeding justified.

Lube v. NCO Fin.

Servs.

566 F.

App’x 713

2014

Authored

majority

Federal Courts

Affirmed: There was no reversible error in the district court’s

decision to deny a motion for reconsideration, and the deadline for

appeal to the original dismissal of the plaintiff’s suit passed.

Genberg v. Porter

566 F.

App’x 719

2014

Authored

majority

Labor &

Employment

Affirmed: The arbitration clause in the plaintiff’s employment

agreement did not apply to claims against the employer’s senior

directors, board of directors, and outside counsel.

Hogan v. Utah

Telecomm. Open

Infrastructure Agency

566 F.

App’x 636

2014

Authored

majority

Civil Liability;

Labor &

Employment

Affirmed in part and remanded in part: Utah state law wrongful

discharge claim applied to all employees, not only at-will employees.

Robles v. RMS Mgmt.

Solutions, LLC

565 F.

App’x 718

2014

Authored

majority

Federal Courts

Affirmed: Other than the Supreme Court, federal courts lack

jurisdiction to hear appeals from final state court judgments deciding

federal questions under Supreme Court doctrine in Rooker v.

Feldman.

Duran v. Att’y Gen. of

New Mexico

565 F.

App’x 719

2014

Authored

majority

Criminal Law &

Procedure

Affirmed: Defense counsel’s decision not to consider a psychologist’s

report suggesting that the defendant was not on his antipsychotic

medication at the time of the crime did not amount to a denial of

effective assistance of counsel under the Sixth Amendment.

Stirling v. Stirling

565 F.

App’x 676

2014

Authored

majority

Civil Rights

Affirmed: Pro se plaintiff failed to state a claim for violation of her

constitutional rights against her ex-husband and new wife under 42

U.S.C. §1983 because the defendants were not state actors.

CRS-30

Case Name

Citation

Year

Role

Subject

Holding

Taber v. Farris

565 F.

App’x 677

2014

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was untimely and did not qualify for equitable tolling.

Crabtree v. Oklahoma

564 F.

App’x 402

2014

Authored

majority

Civil Rights

Affirmed: Individual convicted of sexually abusing two children failed

to state a claim against the State of Oklahoma under 42 U.S.C. §1983

for false arrest, false imprisonment, and malicious prosecution.

Howard v. Ferrellgas

Partners, L.P.

748 F.3d

975

2014

Authored

majority

Civil Liability

Vacated and remanded: When there are material facts as to whether

the parties intended to arbitrate the dispute, the Federal Arbitration

Act requires the court to hold a summary trial on the issue before

proceeding to trial on the merits.

United States v.

Bergman

746 F.3d

1128

2014

Authored

majority

Criminal Law &

Procedure

Vacated and remanded: After defendant’s conviction was vacated for

ineffective assistance of counsel, the district court abused its

discretion in refusing to permit a new trial without first finding that

the circumstances made it impossible for the defendant to obtain

effective assistance in a retrial.

Lawrence v. Sch. Dist.

No. 1

560 F.

App’x 791

2014

Authored

majority

Civil Rights;

Labor &

Employment

Affirmed: District court did not err in dismissing the plaintiff’s claims

for retaliation under 42 U.S.C. §1981 when there was no showing of

municipal liability and an independent arbitrator found the

termination of employment was warranted.

Lately v. Colvin

560 F.

App’x 751

2014

Authored

majority

Public Benefits;

Administrative

Law

Affirmed: The administrative law judge did not commit reversible

error in denying petitioner’s request for disability and supplemental

security benefits after determining that, although she suffered from

vestibular disorder, depression, and panic disorder, the petitioner

retained residual functional capacity to perform a restricted range of

light work, including her past jobs.

United States v.

Arrowgarp

558 F.

App’x 824

2014

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was untimely and did not qualify for equitable tolling.

StorageCraft Tech.

Corp. v. Kirby

744 F.3d

1183

2014

Authored

majority

Civil Liability;

Intellectual

Property

Affirmed: There was no error in awarding $2.92 million as damages

because Utah law allowed for reasonable royalties as damages for

misappropriation of trade secrets, and there was no error in the

admission of the testimony of the plaintiff’s damages expert.

Coats v. Utah

557 F.

App’x 795

2014

Authored

majority

Labor &

Employment;

Federal Courts

Affirmed: The Utah Department of Workforce Services did not waive

its Eleventh Amendment immunity from suit for alleged violations of

the federal Age Discrimination in Employment Act.

CRS-31

Case Name

Citation

Year

Role

Subject

Holding

United States v. Brown

555 F.

App’x 838

2014

Authored

majority

Criminal Law &

Procedure

Affirmed: A traffic stop was not extended beyond the period

permitted by the Fourth Amendment when the officer detected the

odor of marijuana emanating from the defendant’s car and took

further investigative action, and subsequent events provided the

officer with probable cause to search the defendant’s vehicle.

United States v.

Herrera-Cruz

555 F.

App’x 831

2014

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel or

otherwise denied a constitutional right.

United States v.

Baldwin

745 F.3d

1027

2014

Authored

majority

Criminal Law &

Procedure;

Administrative

Law

Affirmed: Federal regulations prohibiting disobeying a federal police

officer and disrupting performance of official duties constituted valid

criminal prohibitions, were not unconstitutionally vague, and were

subject to a “knowingly” mens rea for which there was sufficient

evidence to convict the defendant; and the lack of proof of “posted”

notice of the regulations was not plain error by the district court.

Dixon v. Colvin

556 F.

App’x 681

2014

Authored

majority

Administrative

Law; Public

Benefits

Affirmed: Administrative law judge’s decision that plaintiff was not

entitled to certain Social Security disability benefits was supported by

substantial evidence and applied the correct legal standards.

Winfield v. Utah

556 F.

App’x 669

2014

Authored

majority

Habeas

Certificate of appealability denied: When the defendant, who was

convicted in a state court criminal proceeding, asserted arguments

that were procedurally barred under the law of the state in which he

was convicted, federal courts could not consider the barred

arguments in habeas proceedings.

United States v.

Escobar

554 F.

App’x 711

2014

Authored

majority

Criminal Law &

Procedure

Affirmed: Admission of statements allegedly made prior to a Miranda

warning did not constitute grounds for reversal of a conviction when

it was clear beyond a reasonable doubt that any putative Miranda

error did not contribute to the jury verdict.

Defazio v. Starwood

Hotels & Resorts

Worldwide, Inc.

554 F.

App’x 692

2014

Authored

majority

Labor &

Employment

Affirmed: Former at-will employee’s claims for wrongful termination

were correctly dismissed because, under Colorado law, an at-will

employment relationship generally can be terminated for any reason,

and no exceptions applied.

Moral v. Hagen

553 F.

App’x 839

2014

Authored

majority

Civil Rights;

Criminal Law &

Procedure

Affirmed: District court properly dismissed the plaintiff’s claim that

her arrest violated her First and Fourth Amendment rights on

qualified immunity grounds when the undisputed material facts

showed there was probable cause for the arrest.

CRS-32

Case Name

Citation

Year

Role

Subject

Holding

Lin Yan v. Holder

559 F.

App’x 658

2014

Authored

majority

Immigration

Petition for review dismissed in part and denied in part: An alien was

properly denied asylum when there was sufficient evidence to

support the finding that he was not credible and he failed to exhaust

his administrative remedies related to his claim of denial of due

process.

Sanders v. Miller

555 F.

App’x 750

2014

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

United States v.

Contreras-Hernandez

552 F.

App’x 850

2014

Authored

majority

Criminal Law &

Procedure

Affirmed: There was no error by the district in ordering a 24-month

sentence for the criminal defendant even though the government

recommended an 18-month sentence when the defendant had,

among other relevant factors, a record of recidivism.

Martinez v. Williams

553 F.

App’x 806

2014

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was time-barred.

Lollis v. Archuleta

553 F.

App’x 798

2014

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was time-barred.

Yellowbear v. Lampert

741 F.3d 48

2014

Authored

majority

First

Amendment;

Indian Law

Vacated and remanded: On a motion for summary judgment, the

Colorado prison had not met its burden under the Religious Land

Use and Institutionalized Persons Act of 2000 to show that it could

deny a Native American inmate access to a sweat lodge for use as

part of the inmate’s religious practice.

Simon v. Jones

550 F.

App’x 670

2014

Authored

majority

Civil Rights

Certificate of appealability denied: District court correctly concluded

that prison officials properly revoked an inmate’s administrative

privileges and did not deny the inmate’s constitutional rights based

on the evidence of the case.

United States v.

Madrid-Apodaca

556 F.

App’x 664

2013

Authored

majority

Criminal Law &

Procedure

Affirmed: When the defendant pled guilty and agreed to a sentence of

between two and eight months, the district court did not err in

ordering a nine-month sentence based on applicable sentencing

factors, including the record of recidivism and need for deterrence.

Amerson v. United

States

550 F.

App’x 603

2013

Authored

majority

Civil Rights;

Federal Courts

Denied and dismissed: A prisoner’s state court action against his

warden and other defendants based on the Uniform Commercial

Code was without merit and constituted a frivolous filing under the

Prison Litigation Reform Act.

CRS-33

Case Name

Citation

Year

Role

Subject

Holding

United States v. Green

548 F.

App’x 557

2013

Authored

majority

Habeas

Certificate of appealability denied: The defendant, who was convicted

on federal drug charges, did not make a substantial showing of

ineffective assistance of counsel.

Ali v. Province

550 F.

App’x 619

2013

Authored

majority

Civil Rights;

Federal Courts

Affirmed: District court correctly dismissed an inmate’s claim under

42 U.S.C. §1983 when the inmate’s counsel failed to respond to a

motion for summary judgment and the inmate did not exhaust

administrative remedies.

United States v.

Gomez

550 F.

App’x 613

2013

Authored

majority

Criminal Law &

Procedure

Affirmed: When the defendant pled guilty to participating in a

methamphetamine distribution conspiracy, there was no error on the

part of the district court in its determination of the applicable

advisory sentencing guidelines or imposition of a sentence within the

range of the guidelines.

United States v.

Pursley

550 F.

App’x 575

2013

Authored

majority

Habeas

Certificate of appealability denied: The defendant did not make a

substantial showing of ineffective assistance of counsel.

Arellano v. Medina

547 F.

App’x 912

2013

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings.

Gardner v. Arrowichis

543 F.

App’x 891

2013

Authored

majority

Habeas; Indian

Law

Affirmed: District court properly dismissed petitioners’ request for

habeas relief against tribal officials when it was unclear whether the

petitioners were in custody of the tribal officials and the petitioners

did not comply with the court’s order to file a new pleading that

more clearly described the essential facts.

United States v.

Castillo-Najer

541 F.

App’x 895

2013

Authored

majority

Criminal Law &

Procedure

Affirmed: After he was convicted for aiding in the distribution of

marijuana, the defendant did not present sufficient basis to mandate a

new trial.

United States v. Harris

735 F.3d

1187

2013

Authored

majority

Criminal Law &

Procedure

Affirmed: No Fourth Amendment violation occurred when law

enforcement officers discovered an illegal gun and drugs belonging to

the defendant in the course of carrying out a valid warrant to search

defendant’s property for evidence of a different crime.

CRS-34

Case Name

Citation

Year

Role

Subject

Holding

Blackmon v. Sutton

734 F.3d

1237

2013

Authored

majority

Civil Rights

Affirmed in part and reversed in part: Juvenile detention officials were

properly denied summary judgment based on qualified immunity in a

42 U.S.C. §1983 claim based on the use of a restraining chair for

purely punitive purposes and on denial of access to mental health

medical care, but the plaintiff did not allege sufficient facts to support

his failure-to-transfer claim against the detention facility director.

Roberts v. IBM

733 F.3d

1306

2013

Authored

majority

Civil Rights;

Labor &

Employment

Affirmed: The evidence supported the district court’s grant of

summary judgment to defendants on the plaintiff’s claims for age

discrimination under the Age Discrimination in Employment Act and

state tort law.

Fitzgerald v. United

States Bank

537 F.

App’x 811

2013

Authored

majority

Contracts

Affirmed: In a claim for breach of contract and other civil claims, the

district court properly considered the relevant contracts and

dismissed the complaint when the plaintiffs’ claims were inconsistent

with the contracts at issue.

United States v. Zaler

537 F.

App’x 808

2013

Authored

majority

Habeas

Certificate of appealability denied: Petitioner’s application for a

certificate of appealability was untimely and was properly denied.

Zisumbo v. Ogden

Reg’l Med. Ctr.

536 F.

App’x 832

2013

Authored

majority

Federal Courts

Affirmed: District court properly denied the plaintiff’s motion to

amend his complaint to add a new legal theory because it was

untimely, and it correctly dismissed plaintiff’s subsequently filed

second lawsuit asserting that new theory based on the rule against

claim-splitting.

Hess v. Trammell

535 F.

App’x 765

2013

Authored

majority

Habeas

Certificate of appealability denied and appeals dismissed: Criminal

defendant failed to establish that his convictions were attributable to

ineffective assistance of counsel, and there was no error in the

district court’s decision to deny appointment of counsel in the

habeas petition.

United States v.

Martinez

543 F.

App’x 770

2013

Authored

majority

Criminal Law &

Procedure

Appeal dismissed: There was no error in the district court’s decision

to apply the statutory mandatory minimum sentence of 60 months in

jail for a guilty plea for possession of cocaine with intent to

distribute, and the criminal appeal was dismissed pursuant to Anders

v. California because there were no nonfrivolous arguments to be

made on appeal.

CRS-35

Case Name

Citation

Year

Role

Subject

Holding

Ferguson v. Shinseki

543 F.

App’x 750

2013

Authored

majority

Civil Rights;

Labor &

Employment

Affirmed: When the undisputed record demonstrated that the plaintiff

was not qualified for the job for which she applied, the district court

correctly granted summary judgment for the defendants on the

plaintiff’s claim for discrimination on the basis of gender.

Warner v. Ed Bozarth

Chevrolet

533 F.

App’x 861

2013

Authored

majority

Federal Courts

Affirmed: When a pro se plaintiff chose to use a facsimile transmission

to deliver a pleading without any cover sheet, time stamp, or

certificate of service, she assumed the risk that it would not be timely

delivered and that her case would be dismissed.

United States v.

Goodwin

541 F.

App’x 851

2013

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

United States v. Willis

533 F.

App’x 849

2013

Authored

majority

Criminal Law &

Procedure

Affirmed: The defendant’s motion to suppress was correctly denied

because law enforcement officers had reasonable suspicion to stop

and question the defendant.

United States v.

Summers

539 F.

App’x 877

2013

Authored

majority

Habeas

Certificate of appealability denied: After a conviction for conspiracy to

possess methamphetamine with intent to distribute, the petitioner

did not make a substantial showing that he was denied

constitutionally effective counsel.

Sudduth v. Raemisch

532 F.

App’x 823

2013

Authored

majority

Habeas

Affirmed: Petition for a writ of habeas corpus was untimely and did

not qualify for equitable tolling.

Novell, Inc. v.

Microsoft Corp.

731 F.3d

1064

2013

Authored

majority

Civil Liability

Affirmed: Microsoft’s decision to withdraw certain previously

extended information that would have allowed developers to create,

prior to the release of the Windows 95 operating system,

applications that would be compatible with that system did not

amount to anticompetitive behavior under the Sherman Act, and the

district court correctly entered a directed verdict in favor of

Microsoft on that claim.

Dale K. Barker Co.,

P.C. v. Plaza

541 F.

App’x 810

2013

Authored

majority

Federal Courts

Affirmed: The date of filing of an amended complaint, adding a

defendant in his individual capacity, related back to the date of

original filing, and the district court did not err or abuse its discretion

in other contested rulings.

CRS-36

Case Name

Citation

Year

Role

Subject

Holding

Fletcher v. United

States

730 F.3d

1206

2013

Authored

majority

Indian Law

Reversed: Members of the Osage tribe had a statutory right to compel

the government to provide an accounting of the funds held by the

government in trust pursuant to a 1906 law that directed royalties

earned by the mineral estate in lands belonging to the Osage tribe to

be held in trust with a portion to be distributed to tribe members.

United States v.

Washington

F. App’x

810

2013

Authored

majority

Criminal Law &

Procedure

Affirmed: A damaged cell phone left in a hotel bathroom after

checkout time was properly treated as abandoned; therefore, the

phone could be admitted as evidence in a criminal prosecution even

though it was obtained in a warrantless search of the hotel room.

Lopez v. Holder

532 F.

App’x 797

2013

Authored

majority

Immigration

Petition for review denied: A Guatemalan citizen’s request to reopen his

deportation proceedings for the third time was correctly dismissed

as untimely and “number barred.”

Shue v. Custis

531 F.

App’x 941

2013

Authored

majority

Civil Rights

Affirmed: Plaintiff’s claims under 42 U.S.C. §1983 against his former

public defender and the attorney’s former employer failed as a

matter of law because the public defender did not act under color of

state law, as required for recovery under the statute, while providing

legal assistance to a client accused of criminal wrongdoing.

Niemi v. Lasshofer

728 F.3d

1252

2013

Authored

majority

Civil Liability;

Federal Courts

Vacated and remanded: District court erred in granting a preliminary

injunction freezing certain defendants’ assets and ordering them to

deposit $2.18 million in escrow because the plaintiffs lacked standing

under the state statute that potentially authorized the injunctive

relief.

Buck v. CF&I Steel,

L.P.

531 F.

App’x 936

2013

Authored

majority

Labor &

Employment

Affirmed: District court correctly concluded that there was no

genuine issue of material fact to support a possible breach of the

collective bargaining agreement, and the union did not act in a

discriminatory, dishonest, arbitrary, or perfunctory fashion.

Rodriguez v. Colorado

531 F.

App’x 921

2013

Authored

majority

Federal Courts

Affirmed: The district court properly dismissed the plaintiff’s case

when, after the pro se plaintiff filed three different complaints that

did not meet minimum pleading standards, the district court offered

the opportunity for the filing of a fourth version of the complaint, and

the plaintiff allowed two months to pass without filing a new pleading.

CRS-37

Case Name

Citation

Year

Role

Subject

Holding

Keeler v. ARAMARK

536 F.

App’x 771

2013

Authored

majority

Labor &

Employment;

Civil Rights

Affirmed: The employer offered legitimate, nonretaliatory, and

nonpretextual reasons for firing the plaintiff, including intimidation of

coworkers, a threatened riot, and refusal to cooperate with

investigations, and there was no error by the district court in

refusing to allow the plaintiff’s state law civil claims to proceed to

trial.

Genova v. Banner

Health

734 F.3d

1095

2013

Authored

majority

Health Law &

Civil Liability

Affirmed: An emergency room doctor who claimed his superiors

terminated him for reporting overcrowded emergency room

conditions in which patients should have been transported to other

hospitals did not present a valid claim for violation of the Emergency

Medical Treatment and Active Labor Act, and the district court did

not err in dismissing the plaintiff’s state law tort and contract claims.

United States v.

Munoz-Pena

530 F.

App’x 846

2013

Authored

majority

Criminal Law &

Procedure;

Immigration

Affirmed: The convicted criminal defendant’s sentence of 56 months

in prison for unlawfully reentering the United States was less than the

range suggested under the U.S. Sentencing Guidelines, and the

district court did not err by taking into consideration crimes

committed within 10 years of the defendant’s act of reentry or by

choosing not to further depart downward from the advisory

sentencing range.

Singleton v. Ploughe

530 F.

App’x 843

2013

Authored

majority

Federal Courts

Affirmed: When a pro se inmate attempted to seek relief from a

district court without first filing a complaint and opening a civil case,

and did not abide by the court’s instructions on how to correctly file

within 30 days, the district court properly dismissed the case.

Decker v. Roberts

530 F.

App’x 844

2103

Authored

majority

Habeas

Certificate of appealability denied and appeal dismissed: Petitioner did

not make a substantial showing that he was denied constitutionally

effective counsel or otherwise denied a constitutional right.

United States v.

Esquivel-Rios

725 F.3d

1231

2013

Authored

majority

Criminal Law &

Procedure

Remanded: District court should have conducted further fact-finding

with regard to whether the officer had reasonable suspicion for a

traffic stop based on the lack of a valid vehicle registration, when the

stop was based on a database that “usually” did not return accurate

vehicle registration information, but the defendant’s remaining

objections to admission of evidence and the conduct of the trial were

either without merit or harmless error.

CRS-38

Case Name

Citation

Year

Role

Subject

Holding

Larrieu v. Best Buy

Stores LP

517 F.

Appx’ 635

2013

Authored

majority

Civil Liability

Reversed and remanded: Following an answer by the Colorado

Supreme Court to a question certified to it by the Tenth Circuit

concerning the scope of liability under a Colorado statute at issue in

the case, district court’s summary judgment in favor of the defendant

was reversed and the case was remanded for further proceedings

consistent with the state court ruling.

Wood v. Milyard

721 F.3d

1190

2013

Authored

majority

Habeas; Criminal

Law &

Procedure

Remanded: The convicted criminal defendant’s constitutional

arguments were not procedurally barred in a federal habeas petition

based on the state law procedural rules in effect at the time of

conviction and appeal; the Double Jeopardy Clause prohibited

simultaneous convictions for first and second degree murder in a

case involving the death of a single victim conviction; further

proceedings were necessary to determine which conviction should

be terminated; but the defendant waived his Sixth Amendment claim

for a right to a jury trial during prior proceedings.

Jensen v. Solvay

Chems.

721 F.3d

1180

2014

Authored

majority

Insurance;

Contracts

Affirmed: The retirement plan administrator and sponsor’s failure to

meet statutory notice requirements under the Employee Retirement

Income Security Act of 1974 was not “egregious” within the meaning

of the act, and therefore the plaintiffs were not permitted to a

restoration of certain lost retirement benefits as a remedy.

Montano-Vega v.

Holder

721 F.3d

1175

2013

Authored

majority

Immigration

Affirmed: A federal regulation which deemed appeals to the Board of

Immigration Appeals abandoned if the appellant leaves the country

was not inconsistent with federal statute and did not violate the

petitioner’s due process rights.

United States v.

Nelson

517 F.

App’x 619

2013

Authored

majority

Criminal Law &

Procedure

Affirmed: There was no error in the district court’s sentencing of an

individual who pled guilty to sexual abuse of his minor daughter.

Osborn v. Lampert

516 F.

App’x 712

2013

Authored

majority

Civil Rights

Affirmed: An inmate had not been denied a constitutional right to

access to courts as a result of an allegedly inadequate prison library

when he could not show an actual injury resulting from the prison’s

library policy.

United States v. Dyke

718 F.3d

1282

2013

Authored

majority

Criminal Law &

Procedure

Affirmed: A government’s undercover sting operation was not

“outrageous government conduct” that violated the defendants’ due

process rights.

CRS-39

Case Name

Citation

Year

Role

Subject

Holding

Acker v. Dinwiddie

516 F.

App’x 692

2013

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings.

Jenner v. Faulk

516 F.

App’x 691

2013

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was untimely and did not qualify for equitable tolling.

United States v. Bly

518 F.

App’x 599

2013

Authored

majority

Criminal Law &

Procedure

Affirmed: The convicted defendant was not entitled to a reduction in

his sentence because the postsentencing change in the U.S.

Sentencing Guidelines did not apply to his convictions.

Goosby v. Trammell

515 F.

App’x 776

2013

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was time-barred.

Whitmore v. Parker

525 F.

App’x 865

2013

Authored

majority

Habeas; Criminal

Law &

Procedure

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings and failed to exhaust administrative remedies before

bringing a claim under 42 U.S.C. §1983 arising from his treatment

while incarcerated.

United States v.

Petersen

525 F.

App’x 808

2013

Authored

majority

Criminal Law &

Procedure

Reversed and remanded: At the time of the search of defendant’s

vehicle, law enforcement officers had probable cause to believe a

burglary had been committed, and evidence gathered during the

search should not have been suppressed.

United States v. Bell

526 F.

App’x 880

2013

Authored

majority

Habeas

Certificate of appealability denied: District court correctly dismissed the

petitioner’s motion to reconsider a prior denial of his attempt to

attack a state court criminal conviction collaterally because the

motion to reconsider was not filed within a reasonable time.

Heinrich v. City of

Casper

526 F.

App’x 862

2013

Authored

majority

Federal Courts;

Civil Rights

Affirmed: Designation as a corporate designee for a deposition on

behalf of a municipality, on its own accord, does not render an

individual a final policymaker in such a manner that the deponent can

formulate an official municipal policy or custom sufficient to create

liability under 42 U.S.C. §1983.

United States v. AvitiaBustamante

514 F.

App’x 827

2013

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings, and there was no plain error in the district court’s

sentence of 46 months in prison for a guilty plea of reentering the

country unlawfully under 8 U.S.C. §1326(a)

CRS-40

Case Name

Citation

Year

Role

Subject

Holding

Palmerin v. Johnson

Cty.

524 F.

App’x 431

2013

Authored

majority

Labor &

Employment;

Civil Liability

Affirmed: District court did not err in entering judgment against the

at-will employee plaintiff on his state law retaliation claim under

Kansas law.

United States v.

Chapman

521 F.

App’x 710

2013

Authored

majority

Criminal Law &

Procedure

Affirmed: There was no error in the district court’s decision to issue

a 70-month sentence to a former employee of the New Mexico

Department of Corrections who pled guilty to soliciting bribes in a

case in which the defendant’s efforts to prevent a witness from

speaking to investigators and to mask bribes as loans constituted

obstruction of justice.

United States v. Mills

514 F.

App’x 769

2013

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings.

United States v.

Cornelio-Legarda

514 F.

App’x 771

2013

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel or

otherwise denied a constitutional right.

Carani v. Meisner

521 F.

App’x 640

2013

Authored

majority

Federal Courts;

Civil Rights

Affirmed: District court correctly granted summary judgment

dismissing the constitutionally based false arrest and false

imprisonment claims because law enforcement officials had probable

cause for the arrest; the remaining claims in the complaint either

were not cognizable or not supported by sufficient facts to state a

claim on which relief could be granted; and the award of attorney

fees to certain defendants was not erroneous.

United States v.

Johnson

565 F.

App’x 771

2013

Authored

majority

Criminal Law &

Procedure

Affirmed: When a defendant, who was serving a term of a supervised

relief for a prior criminal conviction, was arrested and pled guilty to

new criminal drug charges, the district court did not err in its

decision to impose consecutive sentences for the new drug offense

and for violation of the supervised relief.

United States v. Alter

512 F.

App’x 744

2013

Authored

majority

Criminal Law &

Procedure

Appeal dismissed: Criminal appeal was dismissed pursuant to Anders v.

California because there were no nonfrivolous arguments to be made

on appeal.

CRS-41

Case Name

Citation

Year

Role

Subject

Holding

Stewart Title Guar.

Co. v. Dude

708 F.3d

1191

2013

Authored

majority

Civil Liability

Affirmed: The plaintiff title company justifiably relied on the

defendants’ representations that there were no preexisting liens on a

parcel of property, and its reliance was sufficient to support the

jury’s verdict that the defendants were liable for fraudulent

misrepresentation.

Ciempa v. Jones

511 F.

App’x 781

2013

Authored

majority

First

Amendment

Affirmed: There was no reversible error in the district court’s

decision granting summary judgment dismissing the plaintiff-inmate’s

claims alleging violations of his rights under the First and Fourteenth

Amendments and the Religious Land Use and Institutionalized

Persons Act of 2000 (RLUIPA) because, among other reasons,

RLUIPA does not create a claim against prison employees in their

individual capacities and the district court did not abuse its discretion

in adjudicating certain procedural matters.

United States v.

Ramos-Carrillo

511 F.

App’x 739

2013

Authored

majority

Criminal Law &

Procedure

Affirmed: There was insufficient evidence in the record to support the

defendant’s arguments that the grand jury heard false testimony or

that the government deliberately prompted a coconspirator to testify

falsely, and the jury’s decision to render a guilty verdict before the

court provided an answer to questions the jury posed to the court

during deliberations demonstrated that the jury was able to resolve

its own question without the court’s assistance.

Anchondo v. Dunn

511 F.

App’x 736

2013

Authored

majority

Civil Liability;

Federal Courts

Affirmed: When counsel for a corporation that was ordered to pay

the plaintiff’s fees and costs in a class action case acted in bad faith by

concealing the existence of a professional liability insurance policy, an

award of sanctions against the attorney for the unpaid attorneys’ fees

in the class action was appropriate.

Newsom v. Ottawa

Cty. Bd. of Comm’rs

511 F.

App’x 718

2013

Authored

majority

Civil Rights;

Federal Courts

Affirmed: The plaintiff’s amended complaint, which recited the

elements of the causes of action without explaining which defendants

committed which wrong or how, failed to state a claim on which

relief could be granted.

McDonald v. Colorado

510 F.

App’x 747

2013

Authored

majority

Federal Courts

Affirmed: District court correctly abstained from hearing plaintiff’s

complaint against two state court judges, and the defendant-judges

were correctly protected under the doctrines of judicial and Eleventh

Amendment immunity.

CRS-42

Case Name

Citation

Year

Role

Subject

Holding

Winbush v. Faulk

510 F.

App’x 746

2013

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings.

ClearOne Commc’ns

v. Bowers

509 F.

App’x 798

2013

Authored

majority

Civil Liability;

Federal Courts;

Intellectual

Property

Affirmed: There was no error in, among other rulings, dissolving a

temporary restraining order allowing the plaintiff to purge its stolen

trade secrets from the defendant’s computers when the process of

removing the information became protracted and unmanageable, or

awarding attorney’s fees against a defendant after an automatic stay

in bankruptcy court was lifted. However, a separate award of

appellate attorney’s fees was vacated and remanded for further

consideration of the scope of contempt liability under the Utah

Liability Reform Act.

Jelitto v. Astrue

509 F.

App’x 712

2013

Authored

majority

Administrative

Law; Public

Benefits

Affirmed: There was no reversible error in the administrative law

judge’s (ALJ’s) conclusion that the applicant was able to perform light

work and was thus not entitled to supplemental security benefits; the

opinion of the applicant’s treating doctor was not adequately

supported, and the ALJ did not err in its treatment of competing

opinions from psychologists.

United States v. Shobe

508 F.

App’x 845

2013

Authored

majority

Criminal Law &

Procedure

Affirmed: Following a conviction for two bank robberies and

associated conspiracy and federal firearms charges, there was no

error in the district court’s sentencing, which included a downward

deviation, of a total of 397 months’ imprisonment.

Smith v. McCord

707 F.3d

1161

2013

Authored

majority

Federal Courts

Affirmed: Summary judgment was correctly granted on the plaintiff’s

excessive force claim under 42 U.S.C. §1983 because plaintiff’s

counsel failed to respond to defendants’ arguments that they were

entitled to qualified immunity.

This opinion was modified by Smith v. McCord, No. 12-2041, 2013

U.S. App. LEXIS 3549 (10th Cir. Jan. 29, 2013) to make “stylistic

changes” necessary for publication. That opinion is not listed here.

Arnold Oil Props.,

L.L.C. v. Schlumberger

Tech. Corp.

508 F.

App’x 715

2013

Authored

majority

Civil Liability

Affirmed: The prevailing party on a breach of contract claim to

recover for “labor and services rendered” was entitled to recoup its

attorneys’ fees under an Oklahoma state statute, and there was no

requirement that fees be apportioned when the same amount of time

necessarily would have been devoted to the case even if the non-feebearing claims were not included.

CRS-43

Case Name

Citation

Year

Role

Subject

Holding

United States v. Dority

508 F.

App’x 709

2013

Authored

majority

Criminal Law &

Procedure

Affirmed: The petitioner for a writ of audita querela was properly

denied because 28 U.S.C. §2555 was the exclusive remedy to test the

validity of the prior criminal sentence and the petitioner did not

demonstrate that there had been a complete miscarriage of justice.

United States v. Cano

507 F.

App’x 805

2013

Authored

majority

Criminal Law &

Procedure

Appeal dismissed: Criminal appeal was dismissed pursuant to Anders v.

California because there were no nonfrivolous arguments to be made

on appeal.

Griffin v. Kastner

507 F.

App’x 801

2013

Authored

majority

Criminal Law &

Procedure;

Federal Courts

Affirmed: When an inmate who alleged that his involuntary

medication order, transfer, and detention were unlawful failed to

object to a magistrate judge’s recommendation of dismissal and there

was no plain error in the ruling, the district court’s decision to adopt

the magistrate’s recommendation was not subject to reversal.

Beck v. Rudek

507 F.

App’x 803

2013

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make substantial

showing that he was denied constitutionally effective counsel in

connection with his plea dealings.

Gaff v. St. Mary’s Reg’l

Med. Ctr.

506 F.

App’x 726

2012

Authored

majority

Labor &

Employment

Affirmed: The district court did not err in granting summary judgment

for the defendant on the plaintiff’s claim that she was subject to a

hostile work environment and fired for opposing discrimination; the

complained-of statements in the work environment were not severe

or pervasive enough to sustain a hostile environment claim, and there

was no evidence the employer’s proffered reason for firing her—a

threat of violence against a coworker—was pretextual.

Apodaca v. Medina

505 F.

App’x 780

2012

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that his transfer from a correction facility in Colorado to

one in Oklahoma denied him a constitutional right.

United States v.

Marquez-Reveles

505 F.

App’x 771

2012

Authored

majority

Criminal Law &

Procedure;

Immigration

Affirmed: The district court’s sentence of 30 months’ imprisonment

followed by 24 months’ supervised release for unlawfully reentering

the country following a previous deportation was not substantively

unreasonable.

Swain v. Seaman

505 F.

App’x 773

2012

Authored

majority

Civil Rights;

Federal Courts

Affirmed: Because the inmate, who alleged that he was denied a

constitutional right to access courts by virtue of a deficient prison

law library, did not respond to the district court’s bases for

dismissing his claim, the Tenth Circuit affirmed the dismissal.

CRS-44

Case Name

Citation

Year

Role

Subject

Holding

United States v. Reese

505 F.

App’x 733

2012

Authored

majority

Federal Courts;

Civil Rights

Question of state law certified: The court certified a question to the

New Mexico Supreme Court addressing whether an individual who

has completed a deferred sentence for a felony offense is barred

from holding public office (and thus also barred from possessing a

firearm under federal law) without a pardon or certificate from the

governor, or whether the restoration of the right to vote

automatically restores the right to hold office without gubernatorial

approval.

Landrith v. Gariglietti

505 F.

App’x 701

2012

Authored

majority

Federal Courts

Affirmed: The Rooker-Feldman doctrine precluded federal courts from

reviewing a state court custody decision, and there was no error in

the district judge’s decision not to recuse herself or in dismissing the

case as frivolous under 28 U.S.C. §1915(e)(2).

Tinner v. Foster

491 F.

App’x 936

2012

Authored

majority

Federal Courts

Affirmed: The court lacked jurisdiction to hear plaintiff’s appeal

because his notice of appeal was not timely filed.

Kaiser v. Colo. Dep’t

of Corr.

504 F.

App’x 739

2012

Authored

majority

Labor &

Employment;

Civil Rights

Affirmed: When the employee failed to produce evidence that his

employer’s stated reasons for the employee’s firing—absenteeism

and poor performance during training—were pretextual, the district

court’s grant of summary judgment on the plaintiff’s claim for

discrimination under Title VII of the Civil Rights Act of 1964 was

appropriate.

Weeks v. Kansas

503 F.

App’x 640

2012

Authored

majority

Labor &

Employment;

Civil Rights

Affirmed: The district court correctly concluded that plaintiff, a lawyer

for a state agency, could not establish a prima facie case of retaliation

under Title VII of the Civil Rights Act of 1964 when she alleged she

was terminated from employment as in-house counsel for providing

legal advice regarding employee complaints of discrimination. The

plaintiff’s stipulation that she was simply performing her duties as

legal counsel, rather than engaging in protected opposition to

discrimination that might give rise to a retaliatory claim, meant that

her conduct did not fall under the scope of Title VII.

United States v. E.V.

503 F.

App’x 627

2012

Authored

majority

Criminal Law &

Procedure

Affirmed: The government’s conclusion that the defendant did not

comply with the terms of his plea deal, and thus was not entitled to a

recommendation of a reduced sentence, was rationally related to a

legitimate government end and was not made in bad faith when the

government concluded that the defendant offered changing and

inconsistent factual accounts that were false or incomplete.

CRS-45

Case Name

Citation

Year

Role

Subject

Holding

United States v.

Garton

501 F.

App’x 838

2012

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel or that

he was otherwise denied a constitutional right during prior criminal

proceedings.

United States v. Hood

501 F.

App’x 812

2012

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

Kilgore v. Weatherly

500 F.

App’x 799

2012

Authored

majority

Civil Rights

Affirmed: The district court properly dismissed as frivolous a claim

that a former state prosecutor and court stenographer violated the

plaintiff’s constitutional rights by not responding to his request for a

full transcript of his state court murder trial for use in his legal

challenge to a separate murder conviction.

United States v. Diaz

500 F.

App’x 798

2012

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

Villa v. Dona Ana Cty.

500 F.

App’x 790

2012

Authored

majority

Federal Courts

Affirmed: The district court did not abuse its discretion in dismissing

the complaint and ordering plaintiffs to pay the defendants’ attorneys

as a sanction following plaintiffs’ discovery violations and failure to

comply with court orders.

Patterson v. Williams

500 F.

App’x 792

2012

Authored

majority

Contracts

Affirmed: Applying Kansas choice-of-law rules, the Kansas statute of

limitations on breach of contract applied to the case, and the

plaintiff’s claim was time-barred.

Jobira v. Holder

487 F.

App’x 465

2012

Authored

majority

Immigration

Petition for review denied: The asylum-seekers’ motion to reopen their

deportation proceedings was denied as untimely.

Coburn v. Regents of

the Univ. of California

500 F.

App’x 779

2012

Authored

majority

Labor &

Employment

Affirmed: The plaintiff failed to demonstrate that exceptions to a state

law rule providing that an at-will employee could be terminated for

any reason applied to his case, and the plaintiff’s claim for breach of

an implied employment contract was correctly dismissed.

Bennett v. Johnson

500 F.

App’x 776

2012

Authored

majority

Civil Rights

Affirmed: The district court correctly granted summary judgment for

the defendants on plaintiff’s claim under 42 U.S.C. §1983 because

there was no genuine issue of material fact that the defendants were

either entitled to qualified immunity or were not acting under color

of state law.

CRS-46

Case Name

Citation

Year

Role

Subject

Holding

United States v. Fields

500 F.

App’x 755

2012

Authored

majority

Criminal Law &

Procedure

Appeal dismissed: Criminal appeal was dismissed pursuant to Anders v.

California because there were no nonfrivolous arguments to be made

on appeal.

Lorentzen v. Omer

486 F.

App’x 749

2012

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings, and he failed to show that he exhausted his claims in

state court before seeking federal relief.

United States v.

Friedman

499 F.

App’x 807

2012

Authored

majority

Criminal Law &

Procedure

Affirmed: When the advisory U.S. Sentencing Guidelines called for a

sentence of between 151 and 188 months, there was no error on the

part of the district judge in sentencing the defendant to 151 months

of incarceration.

United States v.

Martinez

485 F.

App’x 334

2012

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel or that

he was otherwise denied a constitutional right during prior criminal

proceedings.

United States v.

Sullivan

498 F.

App’x 831

2012

Authored

majority

Criminal Law &

Procedure

Appeal dismissed: The defendant waived his right to appeal directly his

sentence in his plea agreement; the government did not relinquish its

right to enforce the plea agreement; and the appellate waiver was

enforceable.

United States v. Allen

497 F.

App’x 853

2012

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel or that

he was otherwise denied a constitutional right during prior criminal

proceedings.

United States v.

Rendon-Martinez

497 F.

App’x 848

2012

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel.

Elwell v. Okla. ex rel.

Bd. of Regents of the

Univ. of Oklahoma

693 F.3d

1303

2012

Authored

majority

Civil Rights

Affirmed: Title II of the Americans with Disabilities Act does not

create a cause of action for employment discrimination cases, and the

plaintiff’s claim under the Oklahoma Anti-Discrimination Act was

correctly dismissed because the defendant did not waive its sovereign

immunity.

Brooks v. Whiteaker

478 F.

App’x 529

2012

Authored

majority

Civil Rights

Affirmed: Summary judgment for the defendants was correctly

granted on the prison inmate’s claim under 42 U.S.C. §1983 because

the inmate failed to exhaust the prison’s grievance procedure.

CRS-47

Case Name

Citation

Year

Role

Subject

Holding

Wyttenbach v. Parrish

496 F.

App’x 796

2012

Authored

majority

Federal Courts

Affirmed: The plaintiff’s suit against his former domestic partner for

breach of the terms of a child custody order from a Texas state

court fell into the “domestic relations exception” to congressional

statutes granting jurisdiction to federal courts.

Banks v. Workman

692 F.3d

1133

2012

Authored

majority

Criminal Law &

Procedure

Affirmed: There was no reversible error in the trial and sentencing

proceedings that led to defendant’s murder conviction and sentence

of death when, among other things, the trial judge allowed ongoing

questioning of a witness who had invoked his Fifth Amendment rights

and the defendant did not preserve his ineffective assistance of

counsel claim arising from an allegedly intoxicated expert witness.

Woolsey v. Citibank,

N.A. (In re Woolsey)

696 F.3d

1266

2012

Authored

majority

Bankruptcy

Affirmed: Under rule set forth in Dewsnump v. Timm, the Bankruptcy

Code does not void a second mortgage on a parcel of property with

a fair market value that is too low to satisfy the balance due on the

first mortgage, leaving no value for the second mortgage.

Hassan v. Colorado

495 F.

App’x 947

2012

Authored

majority

Civil Rights

Affirmed: Article II, Section I, clause 5 of the Constitution, which

states that only a natural-born citizen is eligible to be President, does

not conflict with any other provision of the Constitution, and barred

the appellant for accessing the ballot as a presidential candidate.

Gee v. Pacheco

495 F.

App’x 942

2012

Authored

majority

Civil Rights;

Federal Courts

Affirmed: The district court did not err in dismissing the inmate’s suit

and declining to appoint counsel to hear his 42 U.S.C. §1983 claim

when the prison policy restricting the size of legal materials that

could be kept in the prisoner’s cell was reasonable and did not

excuse the failure to file an amended pleading as ordered.

Rounds v. Clements

495 F.

App’x 938

2012

Authored

majority

First

Amendment;

Civil Rights;

Federal Courts

Affirmed: Taking the allegations in the complaint as true at the motion

to dismiss stage, the plaintiff-inmate alleged sufficient facts in his

retaliatory transfer claim such that the prison official would not be

entitled to Eleventh Amendment immunity under the Ex parte Young

exception.

Public Serv. Co. v.

NLRB

692 F.3d

1068

2012

Authored

majority

Labor &

Employment

Petition for review denied and cross-petition for enforcement of agency

order granted: In a discovery dispute between a labor union and an

employer, the employer waived certain objections by failing to raise

them during administrative proceedings, and, for those objections

that were preserved, the administrative law judge and National Labor

Relations Board correctly ruled that the requested information was

relevant and discoverable.

CRS-48

Case Name

Citation

Year

Role

Subject

Holding

United States v. Reed

481 F.

App’x 448

2012

Authored

majority

Civil Rights;

Federal Courts

Appeal dismissed: The inmate’s appeal of and motion to correct the

district court’s sentencing decisions were untimely.

United States v. Sierra

499 F.

App’x 742

2012

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied constitutionally effective counsel or

otherwise denied a constitutional right.

United States v.

Buckley

508 F.

App’x 698

2012

Authored

majority

Criminal Law &

Procedure

Affirmed: There was sufficient evidence in the record to support the

finding that the defendant exchanged funds with his supplier of

marijuana as alleged in the indictment.

United States v.

Shippley

690 F.3d

1192

2012

Authored

majority

Criminal Law &

Procedure

Affirmed: When the jury returned a guilty verdict on a conspiracy

charge but stated in response to special interrogatories that the

defendant had not conspired to distribute any of the drugs listed in

the indictment, there was no reversible error by the district court in,

among other rulings, instructing the jury to deliberate further and

correct its inconsistent positions.

Palecek v. Jones

473 F.

App’x 866

2012

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was untimely.

Diperna v. Icon Health

& Fitness, Inc.

491 F.

App’x 904

2012

Authored

majority

Civil Liability;

Contracts

Motion to dismiss denied, reversed, and remanded: The district court

award of $45,000 in fees to the law firm lacked an adequate basis, but

the law firm did not waive its right to appeal the fee amount by

accepting and cashing a check from the former client that was

accompanied by a letter saying the check was tendered “in full

settlement.”

United States v.

Gehringer

474 F.

App’x 751

2012

Authored

majority

Habeas

Certificate of appealability denied: Movant did not make a substantial

showing that he was denied constitutionally effective counsel.

United States v. Huizar

688 F.3d

1193

2012

Authored

majority

Criminal Law &

Procedure;

Immigration

Vacated and remanded: When calculating the defendant’s sentence for

unlawfully reentering the United States after previously being

deported, the district court erred in applying a 16-level upward

adjustment to the base offense level because it was not clear whether

a former California conviction for burglary was a “crime of violence.”

United States v.

Izenberg

481 F.

App’x 444

2012

Authored

majority

Habeas

Certificate of appealability denied: Movant did not make a substantial

showing that he was denied constitutionally effective counsel at

sentencing.

CRS-49

Case Name

Citation

Year

Role

Subject

Holding

United States v.

Thompson

470 F.

App’x 715

2012

Authored

majority

Habeas

Certificate of appealability denied: Movant did not make a substantial

showing that he was denied constitutionally effective counsel or that

his guilty plea was involuntary.

BancFirst v. Ford

Motor Co.

489 F.

App’x 264

2012

Authored

majority

Federal Courts

Affirmed: District court did not err in concluding that proposed

expert testimony did not meet standards set forth by the Supreme

Court in Daubert v. Merrell Dow Pharm., Inc., making the testimony

inadmissible.

Blake v. Aramark

Corp.

489 F.

App’x 267

2012

Authored

majority

Federal Courts

Appeal dismissed: Prisoner’s appeal was dismissed for failing to file a

timely notice of appeal.

Alvarado v. Donley

490 F.

App’x 932

2012

Authored

majority

Civil Rights;

Labor &

Employment

Affirmed: Plaintiff did not show that the Air Force’s reason for firing

him (insubordination) was a pretext for either unlawful employment

discrimination on the grounds of race or retaliation for engaging in

protected activity under Title VII of the Civil Rights Act.

Cinnamon Hills Youth

Crisis Ctr., Inc. v. St.

George City

685 F.3d

917

2012

Authored

majority

Civil Rights

Affirmed: Plaintiffs did not show that the city discriminated against or

failed to provide a reasonable accommodation for the disabled by

refusing to grant a zoning variance that would have permitted the

plaintiffs to run a residential treatment facility on the top floor of a

motel.

Larrieu v. Best Buy

Stores, L.P.

491 F.

App’x 864

2012

Authored

majority

Federal Courts;

Civil Liability

Question of state law certified: Federalism and comity interests

necessitated that the Colorado Supreme Court, not the Tenth

Circuit, decide the scope of liability under the Colorado Premises

Liability Act.

Bias v. Astrue

484 F.

App’x 275

2012

Authored

majority

Administrative

Law; Public

Benefits

Affirmed: Claimant was not entitled to Social Security disability

benefits because the administrative law judge correctly determined

that the claimant could perform light work with few restrictions and

perform jobs that exist in significant numbers in the national

economy.

United States v.

Burgdorf

466 F.

App’x 761

2012

Authored

majority

Criminal Law &

Procedure

Affirmed: Defendant’s sentence above that recommended under the

U.S. Sentencing Guidelines—the statutory maximum for

racketeering—was not substantively unreasonable based on his

extensive, serious criminal history.

Buckland v. Buckland

486 F.

App’x 704

2012

Authored

majority

Civil Rights;

Federal Courts

Affirmed: Civil-rights suit was not filed within the statute of

limitations.

CRS-50

Case Name

Citation

Year

Role

Subject

Holding

Winzler v. Toyota

Motor Sales U.S.A.,

Inc.

681 F.3d

1208

2012

Authored

majority

Civil Liability;

Federal Courts

Vacated and remanded: Plaintiff’s claims were moot based on

prudential considerations, given that she was seeking equitable relief

(for the court to order Toyota to notify certain car owners about a

defect and create a fund to pay for repairs), yet, since the lawsuit had

been filed, Toyota had issued a recall that was being overseen by the

National Highway Transportation Safety Administration.

Tilley v. McFarland

467 F.

App’x 804

2012

Authored

majority

Federal Courts

Affirmed: Plaintiff’s complaint alleging that an attorney, judge, and

clerk intimidated him during a court appearance failed to state a

claim for relief.

Burke v. Rudek

483 F.

App’x 516

2012

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing that he was denied a constitutional right during his criminal

proceedings.

United States v.

Maldonado-Ortega

467 F.

App’x 797

2012

Authored

majority

Habeas

Certificate of appealability denied: Movant’s collateral attack on his

conviction and sentence was barred by his plea agreement.

Sisneros v. Office of

Pueblo Cty. Sheriff

466 F.

App’x 755

2012

Authored

majority

Civil Rights

Affirmed: Officers were entitled to qualified immunity, for substantially

the reasons the district court provided.

Kiker v. Cmty. Health

Sys. Prof’l Servs. Corp.

484 F.

App’x 215

2012

Authored

majority

Federal Courts

Affirmed: District court properly awarded fees and costs to plaintiff

for defendant’s wrongful removal to federal court.

White v. Mullins

466 F.

App’x 754

2012

Authored

majority

Civil Rights

Affirmed: Prisoner did not exhaust available administrative remedies

and thus could not pursue his suit under 42 U.S.C. §1983 against

various prison officials.

Tindall v.

Freightquote.com, Inc.

466 F.

App’x 752

2012

Authored

majority

Federal Courts;

Contracts

Affirmed: The district court did not err by enforcing an oral

settlement agreement between the plaintiff and her former employer,

because the plaintiff offered no evidence to demonstrate that the

contract should be voided.

United States v.

Coleman

483 F.

App’x 419

2012

Authored

majority

Criminal Law &

Procedure

Affirmed: Defendant did not show that a police officer acted with

discriminatory purpose when deciding to inspect his truck at the

border and therefore no equal protection violation occurred. Thus,

the district court correctly concluded that the drugs found in

defendant’s truck need not be suppressed.

CRS-51

Case Name

Citation

Year

Role

Subject

Holding

W. World Ins. Co. v.

Markel Am. Ins. Co.

677 F. 3d

1266

2012

Authored

majority

Civil Liability;

Insurance

Reversed and remanded: Oklahoma’s doctrine of equitable

contribution required Markel, as a coinsurer to a haunted house

operation where an employee was injured, to reimburse the other

insurer for its fair share of the attorneys’ fees and costs of the

settlement in the employee’s lawsuit against the haunted house.

Davis v. NewtonEmbry

478 F.

App’x 525

2012

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not show that the trial

court committed an error under the standard set forth by the

Supreme Court in Bruton v. United States by failing to sever the trial

from her codefendant, nor did she show that the prosecutor

improperly commented on her Fifth Amendment right to remain

silent.

Johnson v. Jones

465 F.

App’x 811

2012

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was untimely and did not qualify for equitable tolling.

United States v.

Bayazeed

465 F.

App’x 810

2012

Authored

majority

Habeas

Certificate of appealability denied: Movant’s waiver of the right to

attack his guilty plea and sentence collaterally was made knowingly

and voluntarily.

United States v. Rivera

478 F.

App’x 509

2012

Authored

majority

Criminal Law &

Procedure

Affirmed: District court did not abuse its discretion by giving the jury

a curative instruction for improper testimony rather than granting a

mistrial. Nor did the government improperly fail to disclose a change

in a witness’s account of the crime in violation of the standard set

forth by the Supreme Court in United States v. Bagley because the

defendant could not show that the testimony was material.

Laidley v. City & Cty.

of Denver

477 F.

App’x 522

2012

Authored

majority

Civil Rights

Affirmed: Under the community caretaking doctrine, the city properly

seized and towed plaintiff’s car after citing him for driving without a

license and thus did not violate the Fourth Amendment. Nor did the

police violate the substantive component of the Due Process Clause

of the Fourteenth Amendment by forfeiting the car through a

provision of the city municipal code.

Proffit v. Wyoming

464 F.

App’x 772

2012

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

was time-barred.

CRS-52

Case Name

Citation

Year

Role

Subject

Holding

United States v.

Johnson

2012 U.S.

App. Lexis

2006

2012

Authored

majority

Criminal Law &

Procedure

Affirmed: The defendant’s crime of possessing a weapon in prison, and

his particular conduct when committing the crime, was a crime of

violence potentially subject to a sentencing enhancement under the

U.S. Sentencing Guidelines. For amended order following the denial

of an en banc rehearing, see below at 475 F. App’x 288.

United States v.

Johnson

475 F.

App’x 288

2012

Authored

majority

Criminal Law &

Procedure

Affirmed: The defendant’s crime of possessing a weapon in prison, and

his particular conduct when committing the crime, was a crime of

violence potentially subject to a sentencing enhancement under the

U.S. Sentencing Guidelines. The crime would still be one of violence

even if the court, as the defendant requested, applied the categorical

approach in determining whether his crime was one of violence,

because the indictment charged the defendant with possessing a

weapon in prison, and that categorically is a crime of violence under

circuit precedent.

United States v.

Summers

479 F.

App’x 159

2012

Authored

majority

Criminal Law &

Procedure

Appeal dismissed: Criminal appeal was dismissed pursuant to the rule

set forth by the Supreme Court in Anders v. California because there

were no nonfrivolous arguments to be made on appeal.

Hand v. Walnut Valley

Sailing Club

475 F.

App’x 277

2012

Authored

majority

Federal Courts

Affirmed: It was not an abuse of discretion for the district court to

dismiss the case with prejudice as a sanction for the plaintiff violating

the court rule requiring participants in court-ordered mediation to

keep information from the proceedings confidential.

Church v. Okla. Corr.

Indus.

459 F.

App’x 806

2012

Authored

majority

Civil Rights;

Habeas

Affirmed: The claims for relief the plaintiff sought, such as that he was

actually innocent of the charges for which he had been convicted,

were not appropriate for suit under 42 U.S.C. §1983, but rather

should have been brought in a petition for a writ of habeas corpus.

United States v.

Maytubby

472 F.

App’x 877

2012

Authored

majority

Habeas

Certificate of appealability denied: Movant did not make a substantial

showing that his appellate counsel was constitutionally ineffective,

and thus he could not escape the procedural bar for claims he failed

to present on direct appeal.

United States v.

Rutherford

472 F.

App’x 863

2012

Authored

majority

Habeas

Certificate of appealability denied: Movant did not make a substantial

showing that his conviction for drug trafficking violated the

Commerce Clause or the Tenth Amendment because judicial

precedent foreclosed his argument that Congress exceeded its

constitutional power in enacting the crimes of conviction.

CRS-53

Case Name

Citation

Year

Role

Subject

Holding

Mitchell v. Medina

459 F.

App’x 800

2012

Authored

majority

Civil Rights;

Federal Courts

Affirmed: Prisoner’s complaint, contending that the Colorado Court

of Appeals erred during his state postconviction proceedings, failed

to state a claim for relief because the judges were immune from suit

and the claims, otherwise, were barred by the rule set forth in Heck

v. Humphrey.

McCormick v. Schmidt

469 F.

App’x 661

2012

Authored

majority

Habeas

Certificate of appealability denied: Petition for a writ of habeas corpus

could not proceed because it contained both exhausted and

unexhausted claims.

Nozlic v. Romano

459 F.

App’x 790

2012

Authored

majority

Civil Rights

Affirmed: Plaintiff failed to allege facts supporting an arguable claim of

discrimination based on disability and thus the district court properly

dismissed the complaint.

United States v. Moser

466 F.

App’x 713

2012

Authored

majority

Criminal Law &

Procedure

Affirmed: The government’s evidence was sufficient to support the

jury’s guilty verdicts for bank fraud and conspiracy to commit bank

fraud.

Smith v. Franklin

465 F.

App’x 788

2012

Authored

majority

Habeas

Certificate of appealability denied: The district court did not err by

failing to convert the prisoner’s petition under 28 U.S.C. §2241 into

civil suit under 42 U.S.C. §1983 because his allegations related to his

parole hearing could have properly been brought in a petition for a

writ of habeas corpus.

George v. United

States

672 F.3d

942

2012

Authored

majority

Federal Courts;

Administrative

Law

Affirmed: Plaintiff’s claim under the Quiet Title Act, concerning a

dispute with the Forest Service about an easement running through a

portion of her property that she wanted to fence in, was barred by

the 12-year statute of limitations, which began running when the

predecessor in interest of the property should have known about the

government’s claim to a fence-free road, and that had happened

about three decades earlier.

United States v.

Coulter

461 F.

App’x 763

2012

Authored

majority

Criminal Law &

Procedure

Affirmed: District court correctly denied motion to suppress because,

even assuming police detention of defendant outside his home was

unlawful, there was no but-for causation between the detention and

the subsequent discovery of an unlawfully possessed firearm inside

the defendant’s home, as police permissibly approached the

defendant’s house for safety reasons, and thereafter obtained

consent to enter from defendant’s girlfriend who was present there.

CRS-54

Case Name

Citation

Year

Role

Subject

Holding

Johnson v. Ezell

448 F.

App’x 861

2012

Authored

majority

Habeas

Certificate of appealability denied: Petitioner did not make a substantial

showing of the denial of a constitutional right.

Hinton v. Bowers

458 F.

App’x 755

2012

Authored

majority

Civil Rights

Affirmed: Prisoner failed to exhaust administrative remedies before

filing suit under 42 U.S.C. §1983 against prison officials.

Trujillo v. Williams

460 F.

App’x 741

2012

Authored

majority

Civil Rights

Affirmed: The prisoner-plaintiff waived any objection on appeal to the

remedial plan that New Mexico proposed in response to his

allegation that the state unlawfully required him to pay postage to

access legal materials.

United States v.

Braden

458 F.

App’x 751

2012

Authored

majority

Criminal Law &

Procedure

Affirmed: There was no reason to disturb the district court’s finding

crediting testimony that the defendant had the requisite awareness

while under the influence of methamphetamine to voluntarily waive

her Fifth Amendment rights, and thus her confession did not require

suppression. Additionally, the district court correctly calculated the

amount of drugs attributable to the defendant for the purpose of

applying the U.S. Sentencing Guidelines.

United States v. Moore

456 F.

App’x 762

2012

Authored

majority

Criminal Law &

Procedure

Affirmed: The defendant’s criminal-history category did not

substantially overstate the seriousness of his criminal history, and

thus he did not rebut the presumption that his imposed sentence,

which was less than recommended under the U.S. Sentencing

Guidelines, was reasonable.

George v. Astrue

451 F.

App’x 767

2011

Authored

majority

Administrative

Law; Public

Benefits

Reversed and Remanded: The administrative law judge (ALJ) correctly

determined that claimant did not suffer from a disability that would

allow him to obtain disability and supplemental Social Security

income benefits because the claimant could still perform light work

and jobs existed in the national economy that he could perform. But

the ALJ erred by failing to consider whether claimant suffered from a

mental disability that would preclude him from working.

United States v. Seals

450 F.

App’x 769

2011

Authored

majority

Criminal Law &

Procedure

Affirmed: Defendant failed to preserve his argument that his criminal

proceedings violated the Speedy Trial Act.

Cook v. Cent. Utah

Corr. Facility

446 F.

App’x 134

2011

Authored

majority

Federal Courts;

Civil Rights

Affirmed: District court did not abuse its discretion in applying

procedural rules to dismiss plaintiff-prisoner’s 42 U.S.C. §1983 suit,

given that plaintiff failed to follow the court’s orders despite repeated

warnings.

CRS-55

Case Name

Citation

Year

Role

Subject

Holding

United States v.

Rochin

662 F.3d

1272

2011

Authored

majority

Criminal Law &

Procedure

Affirmed: Police officer did not exceed the scope of a constitutionally

permissive frisk when he removed objects (which turned out to be

drug paraphernalia) from defendant’s pockets because a reasonable

officer would have feared that the detected objects were firearms

given that the defendant was suspected of being involved in a drive-by

shooting.

United States v. CruzArellanes

442 F.

App’x 408

2011

Authored

majority

Criminal Law &

Procedure;

Federal Courts

Affirmed: District court did not abuse its discretion in denying the

defendant’s motion under 18 U.S.C. §3582(c)(2) to reduce his

sentence for illegal reentry after the Sentencing Commission

amended the U.S. Sentencing Guidelines to discuss when a court may

opt to consider imposing a lesser sentence for reentry based on the

defendant’s cultural assimilation, as that amendment did not qualify

for a potential sentence reduction under §3582(c)(2).

Pennington v. Uinta

Cty.

442 F.

App’x 409

2011

Authored

majority

Civil Rights; Civil

Liability

Affirmed: The record contained no evidence that the sheriff or county

were aware that a prison guard who sexually assaulted an inmate

posed a danger of sexually assaulting inmates, and thus they could not

be held civilly liable.

Stine v. Davis

442 F.

App’x 405

2011

Authored

majority

Criminal Law &

Procedure

Affirmed: Petitioner could not pursue a habeas petition under 28

U.S.C. §2241 for when a 28 U.S.C. §2255 motion was inadequate or

ineffective to test the legality of his detention; the petitioner could

have raised his argument that his prior escape convictions did not

merit a career-offender enhancement when he filed his initial §2255

motion.

Elkins v. Astrue

442 F.

App’x 406

2011

Authored

majority

Administrative

Law; Public

Benefits

Affirmed: Administrative law judge (ALJ) did not err in denying Social

Security disability benefits because the ALJ permissibly gave the

claimant’s treating physician’s testimony little weight and did not find

the claimant’s testimony credible about the severity of her

impairments.

Carrera v. Tyson

Foods, Inc.

449 F.

App’x 753

2011

Authored

majority

Civil Rights;

Labor &

Employment

Affirmed: Plaintiff could not succeed on a hostile-work environment

claim under Title VII of the Civil Rights Act because her employer

took remedial and preventative actions reasonably calculated to end

the harassment.

CRS-56

Case Name

Citation

Year

Role

Subject

Holding

Bork v. Carroll

449 F.

App’x 719

2011

Authored

majority

Federal Courts

Affirmed: District court correctly dismissed the lawsuit by a member

of the U.S. Army Reserve challenging personnel decisions made by

his sergeant, superior officers, and the Secretary of Defense for lack

of subject matter jurisdiction because of the government’s sovereign

immunity.

Almond v. Unified Sch.

Dist. #501

665 F.3d

1174

2011

Authored

majority

Civil Rights;

Labor &

Employment

Affirmed: Plaintiffs’ claims under the Age Discrimination Employment

Act were untimely, and plaintiffs also could not take advantage of the

Ledbetter Act’s more generous claim accrual rules, because the

Ledbetter Act applies only to claims alleging actual discrimination in

compensation (i.e., unequal pay for equal work), not any instance of

discrimination that merely relates to compensation in some way.

Lopez-Fisher v. Abbot

Labs.

441 F.

App’x 602

2011

Authored

majority

Civil Rights

Affirmed: Summary judgment on plaintiff’s claims of discrimination was

proper because there was no evidence that the reason offered for

her termination (poor performance) was pretextual, given the

circuit’s presumption that when an employee is hired and fired by the

same person within a short time span, the firing decision isn’t

motivated by discrimination.

TW Telecom Holdings

Inc. v. Carolina

Internet Ltd.

661 F.3d

495

2011

Authored

majority

Bankruptcy

Appeal stayed: Circuit precedent was overruled to join the majority of

circuits in holding that §262 of the Bankruptcy Code automatically

stays the continuation of judicial proceedings against a debtor when

the proceedings were initiated before the filing of a bankruptcy

petition, and there is no exception for the debtor to pursue an

appeal even if it is an appeal from a creditor’s judgment against the

debtor.

United States v. Soto

660 F.3d

1264

2011

Authored

majority

Criminal Law &

Procedure

Affirmed: District court’s finding that defendant lied during his hearing

to withdraw his guilty plea was not clearly erroneous. Based on that

finding, the court also did not err when calculating the recommended

sentence under the U.S. Sentencing Guidelines

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Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch · R44772 | Frix