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

Cody Laboratories, Inc. and Lannett Co., Inc. (collectively, "Cody") appealed a district court's dismissal of their action for declaratory judgment against the Food and Drug Administration (FDA). Cody has been manufacturing and distributing morphine sulfate since 2005. At the time Cody filed its complaint, the company had not received FDA approval for its morphine sulfate product. Cody contends that the product falls under the "grandfather clause" of the Food, Drug, and Cosmetic Act (FDCA). The FDA claims that the grandfather clause is exceedingly narrow and applies only to drugs that have been marketed in essentially identical form since 1938. The FDA sent Cody a warning letter in March 2009 stating that Cody's manufacture and distribution of morphine sulfate was in violation of the FDCA. Meanwhile, in August 2009, Roxane Laboratories, Inc., Cody's main competitor, submitted a New Drug Application ("NDA") for its own morphine sulfate product. Following its policy of granting expedited review of an NDA if no approved alternative drug exists, the FDA quickly reviewed and approved Roxane's NDA in January 2010. Cody submitted an NDA for its product the following month. The company's requests for expedited review were denied. Cody brought suit claiming the FDA acted arbitrarily, capriciously and contrary to law in violation of the Administrative Procedure Act by: (1) improperly determining that Cody's product was a "new drug" and thus not entitled to grandfathered status under the FDCA; and (2) treating Cody disparately from Roxane in processing the companies' respective NDAs. The court subsequently dismissed Cody's complaint for lack of jurisdiction, holding that the FDA had yet to complete "final agency action" under section 704 of the APA. Upon review of the record, the Tenth Circuit concluded that one of Cody's claims was mooted by post-judgment events and that Cody failed to exhaust available administrative remedies with respect to its remaining claim. The Court affirmed the district court's dismissal for lack of jurisdiction on the grandfathering claim, and dismissed Cody's disparate treatment claim as moot.

Plaintiff-Appellant Charles Syrus appealed a district court's dismissal with prejudice his pro se copyright infringement action for failing to state a claim under the Federal Rules of Civil Procedure. In 2007, Plaintiff wrote a song for Defendant Oklahoma City Thunder, the city's professional basketball team in the National Basketball Association. He gave copies of his song (for which he had copyright registration) to the Oklahoma City Mayor's office, and unnamed coaches and cheerleaders for the team. Plaintiff claimed that various uses of phrases taken from his song's lyrics were chanted during games by the cheerleaders, mascot and crowd. He also claimed that Defendants used the phrases in advertising and on banners displayed at the team's home arena. The district court found that Plaintiff had not established a plausible claim, finding that the short phrases at the heart of his claim were not subject to copyright protection. Upon review, the Tenth Circuit concluded that Plaintiff's claims failed as a matter of law against both Defendants.

Pro se prisoner Plaintiff-Appellant appealed the dismissal of his 42 U.S.C. 1983 civil rights complaint for failure to comply with a district court’s order and failure to prosecute. Because Defendants Utah Department of Corrections and several prison officials conceded that the district court's dismissal contravened the "prison mailbox rule," the Tenth Circuit reversed the district court's dismissal and remanded the case for further proceedings.

In 1996, Defendant Peter Gutierrez pled guilty to two federal firearms offenses. The district court sentenced him to 235 months' imprisonment, the low end of the applicable guideline range. Prior to 2010, the sentencing guidelines provided for two additional criminal history points if a defendant committed the crime at issue within two years of being released from imprisonment. These two "recency" points moved Defendant from criminal history category IV to category V. Defendant argued on appeal that Amendment 742 to the guidelines, which removed the "recency" points from the guidelines, should apply retroactively to his sentence and thereby reduce it. The district court rejected this argument. Following precedent in "United States v. Torres-Aquino," 334 F.3d 939 (10th Cir. 2003), the Tenth Circuit concluded that Amendment 742 was not one of the amendments listed in U.S.S.G. 1B1.10, and therefore Defendant had no right to a reduction in sentence. The Court affirmed the district court's refusal to reduce Defendant's sentence.

Petitioner Gong Geng Chen petitioned the Tenth Circuit to review a decision of the Board of Immigration Appeals (BIA) that denied his motion to reopen as untimely. Petitioner n is a native and citizen of the People’s Republic of China. He illegally entered the United States in April 1993. In August of that same year he filed an asylum application in which he asserted that he had been persecuted because of his religious beliefs. Removal proceedings were initiated. After conceding removability, he filed for asylum, withholding of removal, and protection under the Convention Against Torture. On appeal, Petitioner asked the BIA to remand his case to the IJ to consider the impact of worsening conditions for members of unofficial churches in China. In January 2010, more than ninety days following the BIA’s order dismissing his appeal and denying his motion to remand, Petitioner filed a motion to reopen. He acknowledged the untimeliness of the motion, but argued that the time restriction did not apply because of changes in his personal circumstances and in country conditions. Upon review, the Tenth Circuit found that reports and other evidence proffered did not support Petitioner's contention that material changes in country conditions warranted asylum. Accordingly, the Court determined the BIA did not abuse its discretion in denying Petitioner's motion to reopen as untimely, and denied his petition.

Defendant David Ciempa petitioned the Tenth Circuit for a certificate of appealability (COA) to challenge a district court's denial of his habeas petition to challenge the Oklahoma Department of Corrections' (ODOC) revocation of his "good time credits." After an Oklahoma state prison disciplinary proceeding found inmate Defendant guilty of “Individual Disruptive Behavior,” and revoked the credits. In response to this decision, Defendant first appealed to the ODOC and then filed a petition for review in Oklahoma state court. The state court, however, dismissed his petition as untimely under Oklahoma law. After the Oklahoma Court of Criminal Appeals affirmed, Defendant sought to pursue a habeas petition in federal district court, but the district court held the petition procedurally barred. Upon review, the Tenth Circuit agreed with the district court that Defendant procedurally defaulted his claims. Therefore the Court affirmed the district court's decision and denied Defendant's request for a COA.

This appeal stemmed from an explosion that severely injured Robbie Griffin at a worksite in Stephens County, Oklahoma. At the time of the explosion, Mr. Griffin was working as an independent contractor for S&W Transports, Inc. Through a settlement agreement, S&W agreed to pay Mr. Griffin for his injuries. The issue before the Court was which of S&W’s insurers had a duty provide coverage for that payment. Mid-Continent Casualty Company covered S&W under a general commercial insurance policy. Union Insurance Company covered S&W under a commercial umbrella insurance policy. Mid-Continent and Union agreed that if Mr. Griffin caused, in whole or in part, his injuries, Mid-Continent must provide coverage. If not, Union provided coverage. Both companies moved for summary judgment in the district court. The court held that Mr. Griffin caused his injuries under Oklahoma insurance law and granted summary judgment for Union. Mid-Continent appealed. Because, after its review, the Tenth Circuit agreed that Mr. Griffin caused, at least in part, his injuries, the Court affirmed the district court's judgment in favor of Union.

Pro se Petitioner Katherine Slocum appealed the district court's dismissal with prejudice her claims against Corporate Express U.S., Inc., Corporate Express Office Products, Inc., (Corporate Express), Cox Communications Central II, Inc., Cox Oklahoma Telcom, LLC, Coxcom, Inc., (Cox), Journal Broadcast Group, Inc., and Journal Broadcast Group of Kansas, Inc., (Journal Broadcast). Petitioner's suit revolved around allegations that Defendants engaged in illegal surveillance, harassment and discrimination. The complaint, which sought $40 million in actual damages and $20 million in punitive damages, also asserted claims of (among other things) trespass, computer crime, slander, aggravated assault, violations of the Americans with Disabilities Act, insurance fraud, contributory negligence, and wrongful termination. The district court concluded that Petitioner's allegations failed to survive motions to dismiss. On appeal in a 63-page brief, Petitioner mainly re-alleged the claims made at the district court and contends that they were improperly dismissed, in addition to making other procedural and substantive arguments. The Tenth Circuit reviewed other contentions raised by Petitioner in this appeal and found them to be without merit. Some of these arguments, along with new factual assertions, were first made in her reply brief, which the Court declined to consider. Accordingly the Court affirmed the district court's dismissal.

Pro se prisoner Petitioner Dexter Johnson sought a certificate of appealability (COA) from the Tenth Circuit to appeal a district court's dismissal of his unauthorized or successive 28 U.S.C. 2254 petition. In 1996, Petitioner was convicted in Oklahoma state court on one count of shooting with intent to kill. The Oklahoma Court of Criminal Appeals affirmed his conviction. In 1999, Petitioner was unsuccessful in his state application for post-conviction relief. In 2010, Petitioner filed a second application for relief. The court concluded that in light of the dismissal of Petitioner's first petition, the second was unauthorized, and that the claims alleged in his second petition were time-barred. On appeal to the Tenth Circuit, Petitioner contended that the district court "clearly" erred in concluding that his claims were time-barred. Upon review, the Tenth Circuit concluded that Petitioner indeed filed his petition well after the one-year period for filing for post-conviction relief, with no basis for equitable tolling. Furthermore, Petitioner's brief did not address the district court's determination that his second petition was unauthorized, to which the Tenth Circuit concluded that no "jurist of reason" would debate the district court's dismissal on that ground. Accordingly, the Court determined that Petitioner failed to establish he was entitled to a COA, and dismissed his request.

Defendant David Sussman appealed a district court’s revocation of his supervised release. Defendant contended on appeal that he was deprived of liberty without due process of law when federal authorities lodged a detainer with the county jail where he was serving a state sentence but did not execute the arrest warrant until he was released from state custody. Defense counsel requested permission to withdraw from the case and filed an "Anders" brief because he believed there were no non-frivolous grounds for appeal. Defendant responded pro se, seeking appointment of new counsel and identifying grounds for the appeal. Upon review, the Tenth Circuit found that Defendant's grounds for appeal were meritless. The Court granted his counsel permission to withdraw, denied Defendant's motion to appoint new counsel, and dismissed Defendant's appeal.