U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

'Claw Hand' Not a Disability Under ADA

A federal appeals court ruled that a man with a claw hand, denied a job on a locomotive, was not disabled because he could do other jobs.

The U.S. Tenth Circuit Court of Appeals affirmed a dismissal against the man, who sued for disability discrimination after a railroad company retracted a job offer because of his disfigured hand. The employer was not liable under the Americans With Disabilities Act because it considered him able to perform other jobs, the court said.

"The ADA protects disabled workers from discrimination.," Judge Gregory A. Phillips wrote for the court in Duty v. BNSF Railway Company. "But it limits its protection by recognizing that not all impairments are disabilities."

The 1985 film 'Desert Hearts,' tells the story of a divorced woman's lesbian awakening in Reno, Nevada. It's become a cult classic and a seminal work in gay cinema, but to one student assigned to watch it, 'Desert Hearts' had nothing to offer "for anyone other than lesbians who are unable to discern bad film from good."

A disagreement over that review, and the condemnation of lesbians it contained, eventually led the student, Monica Pompeo, to withdraw from the class, a graduate-level course at the University of New Mexico. She later sued, claiming that the university had violated her free speech rights. But the Tenth Circuit rejected her suit last Tuesday, ruling that there was no clear, constitutional prohibition against restricting "inflammatory and divisive statements."

Utah Prairie Dogs Win Appeal

Saved by a federal appeals court, the Utah prairie dog has re-emerged as a protected species after private landowners had won a case that would have allowed them to kill the animal.

The U.S. Tenth Circuit Court of Appeals said the landowners cannot harm the creatures under the Endangered Species Act, reversing a trial judge who said the federal law was invalid under the Commerce Clause. In a controversial decision in 2014, the judge said the prairie dog was not protected under the federal law because it lives only in Utah.

"Approximately sixty-eight percent of species that the ESA protects exist purely intrastate," the appellate panel said in reversing and remanding People for the Ethical Treatment of Property Owners v. United States Fish and Wildlife Service. "Thus, piecemeal excision of purely intrastate species would severely undercut the ESA's conservation."

The Supreme Court unanimously rejected the Tenth Circuit's interpretation of the Individuals with Disabilities Education Act on Wednesday. That law requires schools to provide disabled students with a free and appropriate public education, or FAPE. But to meet that standard, the Tenth had ruled, schools must confer an educational benefit that is "merely more than de minimis." The law is "markedly more demanding" than that, the Supreme Court ruled this morning.

The timing was a bit uncomfortable for the Tenth's Judge Neil Gorsuch, Trump's Supreme Court nominee, who was undergoing questioning before the Senate as the Supreme Court decision was released.

Court Throws Out Suit Over Bad EPA Raid

A federal appeals court threw out a lawsuit against the Environmental Protection Agency for raiding a private company's laboratory, even though an agency official later admitted there were insufficient grounds to justify the raid.

The U.S. Tenth Circuit Court of Appeals said the EPA was entitled to sovereign immunity in Garling v. U.S. Environmental Protection Agency. A trial judge had dismissed the case against Roger and Sheryl Garling as time barred, but the appeals court said the court lacked jurisdiction.

"Sovereign immunity bars all of the Garlings' seven claims and precludes federal court jurisdiction," the court said.

Court Says EEOC Subpoena Overly Broad

Cutting away at a subpoena for being too broad, a federal appeals court turned back an investigation by the Equal Employment Opportunity Commission.

The U.S. Tenth Circuit Court of Appeals affirmed a ruling against the EEOC because the agency issued a subpoena that sought more information than justified by its investigation. The agency was investigating one worker's claim of pregnancy and disability discrimination, but had issued subpoenas for "a complete list" of records about other pregnant or disabled employees.

"The district court did not abuse its discretion in determining the EEOC had not satisfied its burden to justify its expanded investigation," Judge Scott M. Matheson Jr. wrote for the unanimous panel.

The Tenth Circuit could be sending a native up to the Supreme Court. On Tuesday, President Trump announced that Neil Gorsuch will be his nominee to replace the late Justice Scalia. If confirmed by the Senate, Gorsuch would be the first Coloradan on the Court since Justice Byron White and the first Tenth Circuit judge, by our count, to ever make it to the High Court.

With just over ten years serving on the Tenth Circuit, Gorsuch has penned many opinions worth review. Here are, ahem, our top ten.

Appeals Court Strikes ALJ Appointments

A federal appeals court has ruled that an administrative law judge's appointment was unconstitutional, setting up a battle that calls into question the validity of ALJ appointments across the country.

Siding with a businessman who was punished for violating securities laws, the Tenth Circuit Court of Appeals said that a Securities and Exchange Commission judge did not have authority to act in the case because he was not appointed by the President, a court, or a department head.

"Because the SEC ALJ was not constitutionally appointed, he held his office in violation of the Appointments Clause," the majority said.

High Court Stays Silent on Internet Tax

Declining to review a state law on reporting internet sales taxes, the U.S. Supreme Court said nothing about internet taxation itself. But it was close, and perhaps a lucky break for internet businesses in the United States.

The High Court denied a petition to review Colorado's reporting law, which the Tenth Circuit Court of Appeals upheld against a legal challenge earlier this year. The Tenth Circuit said the state law, which requires out-of-state internet retailers to report tax liabilities for its Colorado customers, was constitutional. In its petition to the U.S. Supreme Court, the Data and Marketing Association said the state law discriminated against internet businesses that have only a virtual connection to Colorado

Although the petitioners' lost their battle to overturn the law last week, internet businesses are still winning the war against internet sales taxes in the meantime. The law does not require businesses to collect sales taxes in states where they have no physical presence.

A large display of the Ten Commandments on the city hall lawn in Bloomfield, New Mexico, violates the Constitution's Establishment Clause, the Tenth Circuit ruled recently in an unanimous decision penned by Judge David M. Ebel. The display, which weighs 3,400 pounds and stands 5-feet tall, was erected by private donors and was marked with a small disclaimer that the lawn had been opened to the public for the display of monuments "that reflect the City's history of law and government."

That was not good enough for the Tenth Circuit. In response to a lawsuit by two polytheistic, Wiccan town residents, the court ruled that the monument, despite being privately sponsored, was government speech and an impermissible endorsement of religion.