U.S. Tenth Circuit

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


When the U.S. Supreme Court invalidated President Obama's NLRB "recess" appointments in NLRB v. Noel Canning, the question arose: what happens to all the decisions these now-unlawfully-appointed NLRB members made?

That's the first issue the Tenth Circuit had to grapple with in Teamsters Local Union No. 455 v. NLRB (Harborlite). When the union and management at Harborlite couldn't agree on a new contract, the union members wanted to keep working. The law lets them, but is also allows the employer to conduct a "lock out" and hire temporary replacements until an agreement is reached. Harborlite did more than that, though: it threatened to hire permanent replacements if the union didn't agree with management. The NLRB found this was not OK, but in light of Noel Canning, does that determination mean anything?

Kansas recently passed a law requiring voters to prove their citizenship before they can register to vote. Arizona also passed such a law. But here's the rub: Federal law doesn't make voters prove their citizenship through a document like a passport or a birth certificate. Under federal law, voters merely have to affirm they're citizens, and that's that.

On Monday, the Tenth Circuit heard oral arguments in an appeal of the Kansas version of the case. Earlier this year, a U.S. District Court in Kansas ordered the federal Election Assistance Commission (EAC) to alter federal voting forms to reflect each state's requirements.

This is not a complicated case.

Homaidan Al-Turki is an inmate at Limon Correctional Facility in Colorado. He was in pain. His pain was so severe that he was unable to stand and was vomiting. Mary Robinson, the nurse on duty at the time, refused to treat him, telling him to take it up in writing with the doctor who would be around in the morning. Eventually he passed out, woke up still in pain, and passed two kidney stones.

Crisis averted, but there was still the matter of hours of untreated pain. Hence, his lawsuit against Robinson for deliberate indifference.

In a case from the wild prair-ee, the Tenth Circuit was called upon to figure out who owns rights to what, stemming from an almost 100-year-old mineral rights law. The Ballad of Jed Clampett this is not.

Stull is a ranching company. It runs a grouse-hunting business above ground in rural Colorado. Entek is a mineral company. It mines for minerals, oil, and other valuable underground stuff -- largely under Stull's land. Entek needed access to Stull's land in order to develop new oil well and to maintain its existing oil wells on adjacent BLM land. Stull said no; Entek's presence would disturb its grouses.

A federal district court granted Entek the right to access portions of Stull's land -- but not the right to cross over Stull's land to service its wells on BLM land.

Hobby Lobby happened: Employers can request an exemption from the contraceptive coverage mandate portion of Obamacare if the closely held corporation's owners' religious beliefs would be burdened by the mandate.

But it wasn't just the coverage requirement that burdened these owners' religious beliefs. Later that week, the Court issued an order in the Wheaton College appeal, blocking enforcement of the religious accommodation procedures against the college. The college argued that the procedures amounted to facilitating the religiously objectionable conduct (providing birth control). And facilitating the sin is still a sin, it seems.

Though that injunction was far from a decision on the merits, the Obama administration, in a filing in a Tenth Circuit case, has told the appeals court that the accommodation procedure will be tweaked, hopefully to the religious objectors' satisfaction.

The Black Hills National Forest ("BHNF") straddles Wyoming and South Dakota, and its infestation by pine beetles has made the forest a subject of litigation in South Dakota, Wyoming, and Colorado.

Last week, the Tenth Circuit joined the Eighth Circuit Court of Appeals in denying environmental activist organizations the ability to challenge plans to address the pine beetle infestation in the BHNF, South Dakota Attorney General Marty Jackley announced.

Chris Hogan was once employed by UTOPIA, the Utah Telecommunication Open Infrastructure Agency. He claims he was fired after he revealed conflicts of interest in contract awards. After Hogan was fired, he threatened to sue the agency unless he was paid $219,000 in damages and the agency's executive director was also fired.

Coincidentally, an unflattering article appeared in a local newspaper discussing Hogan's termination and calling his demand for damages "extortion" and "blackmail." The article's author, "Richard Burwash," was a pseudonym for Mike Winder, the mayor of West Valley, Utah, where the agency did much of its business.

Hogan's lawsuit dealt mostly with defamation, but the Tenth Circuit was having none of it.

Do state officials have the right to decline to defend their state's laws? As we noted before, it is not an easy question. But University of Denver law professor (and rabbi) Kris McDaniel-Miccio, who is a plaintiff in one of the lawsuits challenging her state's gay marriage ban, disagrees: She penned an open letter to Colorado Attorney General John Suthers arguing that it is his duty to not defend the law.

Why? When he was sworn into office, Suthers pledged to uphold the laws and the constitutions of the United States and Colorado. With more than two dozen courts unanimously siding with marriage equality, including the Tenth (twice) and Fourth circuits, McDaniel-Miccio argues that the federal question is settled and that Suthers is not fulfilling the duties of his job by pressing forward.

Previously, Suthers stated that he was only reluctantly defending Colorado's Amendment 43, again, as a matter of duty, and despite his disagreement with the law.

Washburn University School of Law, you (finally) have something to celebrate: a Tenth Circuit Court of Appeals judge (and now-former Kansas Supreme Court Justice). Other notable Washburn alums include former Senator and Presidential candidate Bon Dole and Fred Phelps, Pastor of the Westboro Baptist Church. Time to update the Wikipedia page, folks!

Justice Moritz, now Judge Moritz, fills a vacancy that's been around since then-Judge Deanell Tacha took senior status in 2011, shortly before taking over as Dean of Pepperdine Law School. With Moritz's ascension to the bench, the list of judicial vacancies grows even smaller, leaving only a few district-level spots in the Tenth Circuit, and a few circuit court seats elsewhere.

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Aereo was an online service that rebroadcast over-the-air network programming over the Internet. That didn't work out so well for them, especially once they reached the U.S. Supreme Court.

But buried in that SCOTUS opinion was a nugget of hope: a DVR service. The Court explicitly noted that it was not ruling on whether Aereo's DVR service, which stores user recordings of programs in the cloud, was legal. Of course, a DVR isn't much good if there is no video to be recorded, so the company is also rebranding itself as an online cable company, hoping that the rebranding entitles them to a compulsory license on programming.

It's not a crazy pivot: online television via antennas to online cable provider. Heck, it's not like they switched from video advertising to scrubbing socks. But will it work? If so, the company will have to win in two separate legal battles: one in the Tenth Circuit and one in a federal district court in New York.

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