Justia Government & Administrative Law Opinion Summaries

Petitioner Qwest Corporation sought review of an order of the Federal Communications Commission which denied Qwest’s petition for regulatory forbearance pursuant to 47 U.S.C. 160(a). Qwest filed a petition with the Commission in March 2009 seeking relief from certain regulations pertaining to telecommunications services in the Phoenix, Arizona, metropolitan statistical area (MSA). The Commission denied the petition, citing insufficient evidence of sufficiently robust competition that would preclude Qwest from raising prices, unreasonably discriminating, and harming consumers. Qwest challenged the Commission’s decision only as it pertained to Qwest’s mass-market retail services. Upon review, the Tenth Circuit denied Qwest's petition: "We are not a 'panel of referees on a professional economics journal,' but a 'panel of generalist judges obliged to defer to a reasonable judgment by an agency acting pursuant to congressionally delegated authority.'" The Court found the Commission's order was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

US Magnesium sought review of a recent final rule from the United States Environmental Protection Agency (EPA). In its rule, the EPA called for Utah to revise its State Implementation Plan (SIP) for the federal Clean Air Act (CAA). Under the CAA, the EPA may call for a state to revise its SIP (a SIP Call) if the EPA finds the state’s current SIP substantially inadequate. Here, the EPA determined that Utah’s SIP was substantially inadequate because it contained an Unavoidable Breakdown Rule (UBR), which permits operators of CAA-regulated facilities to avoid enforcement actions when they suffer an unexpected and unavoidable equipment malfunction. In this SIP Call, published as a final rule in April 2011, the EPA requested that Utah promulgate a new UBR—one that conforms with the EPA’s interpretation of the CAA. US Magnesium maintained that the SIP Call was arbitrary and capricious and asked the Tenth Circuit to vacate it. Upon review, the Court did not find the EPA's decision arbitrary and capricious, and denied US Magnesium's petition for review.

Defendant Alfredo Huizar pled guilty to reentering the United States illegally after an earlier deportation. The district court held that Defendant's 1995 California conviction for residential burglary qualified as a "crime of violence," triggering a sixteen-level enhancement. On appeal, Defendant argued the enhancement wasn't legally authorized and his sentence should have been reconsidered. Upon review of the district court record, the Tenth Circuit agreed that the district court erred in calculating Defendant's sentence. Accordingly, the Court vacated Defendant's sentence and remanded the case for resentencing.

Petitioner Tina Marie Somerlott appealed a district court's dismissal of her claims against Cherokee Nation Distributors, Inc and CND, LLC ("CND") for lack of subject-matter jurisdiction. Petitioner brought federal employment discrimination claims against CND, alleging violations of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. After allowing discovery by both parties, the district court concluded CND was immune from suit under the doctrine of tribal sovereign immunity and, therefore, dismissed Petitioner's complaint in its entirety. Upon review of the district court record, the Tenth Circuit agreed with the court's reasoning and affirmed its decision.

Defendant Agapito Franco-Lopez appealed his conviction on one count of transporting an illegal alien. Defendant argued that the district court erred in denying his motion for acquittal because the government did not present evidence that the transported alien illegally "entered" the United States. In support, Defendant relied on the definition of "entry" used in the context of civil immigration law or in illegal reentry cases charged under 8 U.S.C. 1325 and 1326. As to this element of 8 U.S.C. 1324(a)(1)(A)(ii), the Tenth Circuit concluded the government needed only prove that the transported alien was present in the United States in violation of the law. Accordingly, the Court affirmed the district court.

Petitioner Frances Leon Harvey's appeal before the Tenth Circuit stemmed from a Federal Tort Claims Act ("FTCA")lawsuit that he brought against the United States government for complications arising from an injury to his hand. Petitioner claimed that government employees injured him by: (1) misdiagnosing and delaying treatment of his hand fracture; and (2) performing negligent surgery on his hand. He argued that the district court erred in holding the misdiagnosis/delay-in treatment claim to be time-barred and in granting summary judgment on the negligent surgery claim for failure to produce expert evidence. Furthermore, Petitioner argued because Navajo law was the substantive law of this case, the district court failed to follow Navajo law when it dismissed his negligent surgery claim. Upon review, the Tenth Circuit held that the district court properly denied Petitioner's motion for default judgment. Although the Court disagreed with the district court's conclusion that the misdiagnosis claim was time-barred, the Court concluded that Petitioner's failure to provide expert evidence doomed both his misdiagnosis and surgical malpractice claims. Finally, although the parties disagreed about whether Arizona law or Navajo law applied, the Court did not reach the issue because the outcome would have been the same under both.

Plaintiff-Appellee Gary Lederman sued his former employer, Frontier Fire Protection, Inc., to recover overtime pay he alleged was owed to him under the Fair Labor Standards Act (FLSA). A jury found Frontier liable and awarded Lederman $17,440.86 in damages. Frontier challenged the jury instructions issued by the district court. Upon review, the Tenth Circuit found that the district court should not have instructed the jury that Frontier bore a heightened burden of proof in establishing its entitlement to an FLSA exemption. Accordingly, the Court reversed the district court and remanded the case for further proceedings.

Plaintiff-Appellant Elizabeth A. Bertsch appealed the grant of summary judgment in favor of her former employer, Defendant-Appellee Overstock.com, on her hostile work environment and retaliation claims, and appealed the denial of leave to amend to add a disparate-treatment claim, all under Title VII of the Civil Rights Act, 42 U.S.C. 2000e-e17. Plaintiff claimed that working next to another employee "notorious" for viewing sexually explicit videos at work and making misogynistic comments made work a hostile work environment. Despite her "clean" record, she and the offending co-worker were reprimanded for contributing to the work environment and instructed to work more cooperatively. Cooperative efforts ultimately failed, and Plaintiff was eventually fired; the employer elected to terminate Plaintiff because the situation between Plaintiff and the co-worker "was not ever going to resolve itself." Overstock viewed Plaintiff as a "difficult, high-maintenance employee who left the company with no choice but to part ways." Upon review, the Tenth Circuit found that Plaintiff did not exhaust her administrative remedies prior to bringing her disparate treatment claim before the Court. Accordingly, the Court held Plaintiff could not bring her Title VII action based on claims that were not part of the timely-filed EEOC charge for which she received a right-to-sue letter. Otherwise, the Court affirmed the district court's dismissal of the hostile work environment sexual harassment claim (and denial of leave to amend). The Court reversed the district court on Plaintiff's retaliation claim. The case was remanded for further proceedings.

Plaintiff-Appellant Borchardt Rifle Corporation appealed a district court's grant of summary judgment affirming the revocation of its federal firearms license. After an initial compliance inspection, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) granted Borchardt a license in 2002. The ATF conducted a second inspection in 2007 and detected numerous violations of the Gun Control Act. Some of the 2007 violations had also been noted in 2002. In 2008, the ATF revoked Borchardt's license based on these repeat violations. Borchardt filed a petition for review in federal district court and challenged the revocation by arguing that Borchardt's owner, Albert Story, did not willfully violate the Act. On ATF's motion for summary judgment, the district court sustained the administrative revocation. Finding the ATF's evidence sufficient to support its' decision against the plaintiff, the Tenth Circuit affirmed the district court's judgment.

Plaintiff-Appellant Equal Employment Opportunity Commission ("EEOC") on behalf of Jessica Chrysler ("Employee"), appealed a district court's grant of summary judgment in favor of Defendant-Appellee The Picture People ("Employer"). The district court granted summary judgment on the basis that Employee could not establish that she was qualified (with or without accommodation) to perform an essential function of her job as a "performer" in Employer's store. It also concluded that Employee's retaliation claim failed because she could not perform an essential function of the job, and that she offered no evidence that Employer's legitimate, non-discriminatory reasons were pretextual. Upon review of the district court record, the Tenth Circuit found no error and affirmed.