Justia U.S. 10th Circuit Court of Appeals Opinion Summaries

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Brayan Alexis Osuna-Gutierrez was arrested in Kansas. He was a passenger in a rental vehicle on a cross-country trip. The police found approximately seven grams of marijuana belonging to Gutierrez that he had legally purchased in Colorado. Police also found approximately three kilograms of methamphetamine in the rear portion of the car. The government charged Gutierrez and his co-defendants with possession with intent to distribute methamphetamine. Gutierrez ultimately pled guilty to “Possession of Marijuana with Intent to Distribute" (the government dropped the methamphetamine charges). The district court sentenced him to time served, approximately seven months. After leaving jail, Gutierrez was immediately transferred to immigration custody and served with Notice of Intent to Issue a Final Administrative Removal Order (the expedited removal process). During the removal process, an officer within DHS concluded that Gutierrez was not a legal permanent resident, having come to the United States from Mexico with his mother when he was one year old without being legally admitted. Further, Gutierrez had pled guilty to an aggravated felony. Gutierrez timely petitioned for review of his removal and was deported back to Mexico. Gutierrez argued his deportation was improper because: (1) the Department of Homeland Security’s (DHS) expedited removal process is illegal; and (2) in any event, it was improper for DHS to use the expedited removal process on Gutierrez because he pled guilty to a misdemeanor, not a felony. The Tenth Circuit found Gutierrez was wrong on both counts, and denied Gutierrez's petition for review. View "Osuna-Gutierrez v. Johnson" on Justia Law

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George Rouse hanged himself shortly after defendants, Oklahoma State Bureau of Investigation Agents Francia Thompson and Marvin Akers transported him to the Grady County Law Enforcement Center (GCLEC) for booking. Rouse’s mother, Regina Williams, brought suit under 42 U.S.C. 1983. She alleged the defendants knew Rouse was suicidal when they delivered him to GCLEC but failed to inform GCLEC’s booking staff of that fact. Defendants appealed, arguing the district court erred in its order denying their motion to reconsider its denial of their motion to dismiss on grounds of qualified immunity. The Tenth Circuit dismissed the appeal for lack of jurisdiction, finding that defendants didn’t expressly designate the district court's order in their notice of appeal. "And we can’t fairly infer an intent to appeal that order from any of the other relevant documents before us." View "Williams v. Akers" on Justia Law

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Petitioner Constantine Golicov, a lawful permanent resident of the United States, sought review of a Board of Immigration Appeals (BIA) order concluding that his Utah state conviction for failing to stop at a police officer’s command rendered him removable under the Immigration and Nationality Act (INA). The specific provision of the INA that served as grounds for removal provided that an alien is subject for removal if that person commits an "aggravated felony." The INA defined the term "aggravated felony" to include "crimes of violence." Petitioner argued to the Tenth Circuit that "crime of violence" was unconstitutionally vague. After review of the Supreme Court precedent of "Johnson v. United States," (135 S. Ct. 2551 (2015)), and applying that case to the facts of this case, the Tenth Circuit agreed with petitioner that the INA's term was indeed vague. The order of removal was vacated and the case remanded for further proceedings. View "Golicov v. Lynch" on Justia Law

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Defendant-appellant Jesus Domingo Martinez-Cruz appealed the district court’s twelve-level enhancement of his sentence under United States Sentencing Guideline (the Guidelines) section 2L1.2, Application Note 5, for his previous conviction for Conspiracy to Possess a Controlled Substance with Intent to Distribute. Defendant argued that this was error, because Application Note 5 used the term “conspiring” without defining it, thus the categorical approach should have applied. Because the generic definition of conspiracy required an overt act while his conviction under 21 U.S.C. 846 did not, defendant argued, his previous conviction was not a categorical match for the generic definition of “conspiracy” and he should therefore have received only an eight-level enhancement for a prior aggravated felony conviction. After review, the Tenth Circuit agreed with defendant. The Court therefore reversed and remanded for resentencing. View "United States v. Martinez-Cruz" on Justia Law

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Petitioner American Federation of Government Employees Local 1592 (Union) appealed a Federal Labor Relations Authority (FLRA) decision made in favor of the Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah. The FLRA rejected the Union’s claim that Hill committed an unfair labor practice when it denied the request of its then-employee Joseph Ptacek Jr. to have a union representative present during questioning by the Air Force Office of Special Investigations (AFOSI) about his misuse of a work computer. The claim rested on a provision of 5 U.S.C. sec. 7101 et seq., that provided federal employees who belonged to a union with the right to the presence of a union representative when questioned about matters that could lead to discipline. The FLRA relied on President Carter’s Executive Order 12,171, which exempted AFOSI from coverage under the Labor-Management Statute. After review, the Tenth Circuit concluded section 7103(b)(1) and Executive Order 12,171 extinguished any right to have a union representative present during a proper AFOSI interrogation, and as such, denied the Union’s petition. View "American Fed. of Gov. Employee v. FLRA" on Justia Law

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Prior to petitioner-appellant Corbin McNeill retiring as an executive to a utility company, "he came across a complicated little scheme suggested by some well-heeled tax advisors." At its core, the scheme was to transfer to McNeill losses that foreign debt holders had already suffered: McNeill would claim the losses as deductions against his income; the foreign debt holders would transfer their assets for a slight premium over their current (and much reduced) market value because McNeill could use them to secure a tax advantage they didn’t need. To accomplish this, McNeill's tax advisors established a series of partnerships to which the foreign debt holders contributed their underwater debt instruments and their basis in them. McNeill contributed a relatively small sum of money, but owned over 90% of the partnership. When the partnership sold the debt to third parties, it could claim to realize the whole of the losses, and McNeill could claim his income was offset by the losses. In aid of the scheme, various accounting and law firms supplied opinion letters affirming that the scheme would withstand IRS scrutiny. The IRS indeed questioned McNeill's partnerships, and determined McNeill owed back taxes. McNeill paid the tax then filed suit seeking a partial refund. McNeill didn’t suggest that the partnership scheme was lawful or that he should have been excused the taxes the IRS assessed. Instead, he argued only that he should have been excused from the penalties and associated interest the IRS had imposed. The district court declined to decide the merits of McNeill’s partner level defense, holding it was precluded from doing so by Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA). The Tenth Circuit concluded this judgment was made in error, reversed and remanded for further proceedings. View "Mc Neill v. United States" on Justia Law

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Sundance Energy Oklahoma, LLC, brought suit against Dan D. Drilling Corporation for damages resulting from the total loss of an oil and gas well. A jury found in favor of Sundance Energy, and the district court denied Dan D.'s motion for a new trial. On appeal, Dan D. argued the district court erred in: (1) giving one jury instruction and omitting another; (2) admitting certain evidence; and (3) awarding Sundance attorney’s fees. Finding no reversible error, the Tenth Circuit affirmed. View "Sundance Energy Oklahoma v. Dan D Drilling Corp." on Justia Law

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Plaintiff Forney Industries, Inc.'s product packaging has, since at least 1989, used some combination of red, yellow, black, and white coloration. The issue in this case was whether Forney's use of colors in its metalworking product line was a protected mark under the Lanham Act. Forney alleged that Defendant Daco of Missouri, Inc., which did business as KDAR Co. (KDAR), infringed on its protected mark by packaging KDAR’s “Hot Max” products with similar colors and a flame motif. The district court granted summary judgment to KDAR and the Tenth Circuit affirmed. Forney’s use of color, which was not associated with any particular shape, pattern, or design, was not adequately defined to be inherently distinctive, and Forney failed to produce sufficient evidence that its use of color in its line of products had acquired secondary meaning. View "Forney Industries v. Daco of Missouri" on Justia Law

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Plaintiffs-Appellants Blake Brown, Dean Biggs, Jacqueline Deherrera, Ruth Ann Head, Marlene Mason, Roxanne McFall, Richard Medlock, and Bernadette Smith appealed a summary judgment order upholding Defendants-Appellees Thomas E. Perez, Secretary of Labor, United States Department of Labor, and the Office of Workers Compensation’s (“OWC”) (collectively, “the agency”) redactions to documents they provided to Plaintiffs pursuant to the Freedom of Information Act, (“FOIA”). Plaintiffs were former federal civilian employees eligible to receive federal workers compensation benefits. If there was a disagreement between a worker’s treating physician and the second-opinion physician hired by the OWC, an impartial “referee” physician was selected to resolve the conflict. The referee’s opinion was frequently dispositive of the benefits decision. To ensure impartiality, it is the OWC’s official policy to use a software program to schedule referee appointments on a rotational basis from a list of Board-certified physicians. Plaintiffs suspected that the OWC did not adhere to its official policy, but instead always hired the same “select few” referee physicians, who were financially beholden (and presumably sympathetic) to the agency. To investigate their suspicions, Plaintiffs filed FOIA requests for agency records pertaining to the referee selection process. Because the Tenth Circuit found that the FOIA exemptions invoked by the agency raise genuine disputes of material fact, the Court reversed and remanded for further proceedings. View "Brown v. Perez" on Justia Law

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A mudslide destroyed a commercial building in Boulder, Colorado, owned by Paros Properties LLC and insured under a policy issued by Colorado Casualty Insurance Company. Paros filed an insurance claim but the Insurer denied payment because damage from mudslides was excluded from policy coverage. Paros then filed a state-court suit seeking payment under the Policy and damages for bad-faith breach of the insurance contract. It argued that the mudslide caused the building to explode, bringing the incident within the scope of an explosion exception to the Policy’s mudslide exclusion. The Insurer removed the action to federal court, which granted summary judgment to the Insurer. On appeal Paros argued: (1) that the district court lacked subject-matter jurisdiction because the Insurer’s removal from state court was untimely; and (2) that the district court erred on the merits in holding that there was no coverage. After its review, the Tenth Circuit held that the notice of removal was too late. But because the district court correctly ruled on the merits and the jurisdictional requirements were satisfied at that time, the Court affirmed the judgment below rather than burden the state court and the parties by requiring relitigation. View "Paros Properties v. Colorado Casualty Ins Co" on Justia Law