Judge Gorsuch’s decisions on the 10th Circuit

ANDREW HAMM FEB 2, 2017 4:22 PM

Below the jump is a compilation of Judge Neil Gorsuch’s jurisprudence on the U.S. Court of Appeals for the 10th Circuit in a number of key areas. The quoted case descriptions are from Westlaw, except where described as quotations from Gorsuch.

Abortion

Planned Parenthood Ass’n of Utah v. Herbert, 839 F.3d 1301 (10th Cir. 2016) (dissented from denial of rehearing en banc)

• A 10th Circuit panel had ruled for Planned Parenthood in a case that challenged Utah’s suspension of funding for the group after the disclosure of hidden-camera videos alleging that the organization’s clinics (although not in Utah) were selling fetal tissue.
• Gorsuch dissented from the denial of rehearing by the full court, largely on procedural grounds.

Pino v. United States, 273 F. App’x 732 (10th Cir. 2008) (wrote opinion)

• The Oklahoma Supreme Court certified (see below) that the “state’s wrongful death statute did afford a cause of action for the wrongful death of a nonviable, stillborn fetus,” so the 10th Circuit reversed the district court’s grant of summary judgment for the United States on a wrongful death claim and remanded.

Pino v. United States, 507 F.3d 1233 (10th Cir. 2007), certified question answered, 2008 OK 26, 183 P.3d 1001 (wrote opinion)

• The 10th Circuit certified to the Oklahoma Supreme Court to the question of whether wrongful death action for nonviable stillborn fetus existed, under Oklahoma law, on date of delivery of fetus.

 

Administrative Law

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) (wrote opinion and concurred separately)

• “inadmissibility under one-year bar prevented aliens who entered country illegally more than once from obtaining adjustment of status, did not apply retroactively to bar alien’s application for adjustment of status”
• Gorsuch wrote a separate concurrence expressing his doubts about the doctrine of Chevron deference, which “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate[s] federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015) (wrote opinion)

• Decision of Board of Immigration Appeals in In re Briones did not apply retroactively to bar alien’s application for adjustment of status.

United States v. Nichols, 784 F.3d 666 (10th Cir. 2015) (dissented from denial of rehearing en banc)

• Panel had held that SORNA requires sex offenders to notify authorities if they plan to leave the country
• Gorsuch: “Beyond this matter of statutory interpretation, though, lies a constitutional question that deserves more notice. If the separation of powers means anything, it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce. Yet, that’s precisely the arrangement the Sex Offender Registration and Notification Act purports to allow in this case and a great many more like it.”

Compass Envtl., Inc. v. Occupational Safety & Health Review Comm’n, 663 F.3d 1164 (10th Cir. 2011) (dissented)

• Panel upheld commission’s determination that employer violated safety-training standards
• Gorsuch: “Still, there remains one thing even federal administrative agencies cannot do. Even they cannot penalize private persons and companies without some evidence the law has been violated. Yet that’s what we’re being asked to countenance in this case and why I would grant the petition for review.”

WWC Holding Co. v. Sopkin, 488 F.3d 1262 (10th Cir. 2007) (dissented)

• “Skeptical of my own capacity to arrive purely by judicial self-direction at the optimal understanding of a complex corner of federal communications law”

 

Antitrust

Novell, Inc. v. Microsoft Corp., 731 F.3d 1064 (10th Cir. 2013), cert. denied, 134 S. Ct. 1947 (2014) (wrote opinion)

• “manufacturer’s withdrawal of prior dealing with ISV did not violate anti-monopoly provision of Sherman Anti-Trust Act”

Four Corners Nephrology Associates, P.C. v. Mercy Medical Center of Durango, 582 F.3d 1216 (10th Cir. 2009) (wrote opinion)

• “refusal to allow physician to use inpatient nephrology facilities did not constitute anticompetitive conduct under Sherman Act or Colorado law”

 

Arbitration

Ragab v. Howard, 841 F.3d 1134 (10th Cir. 2016) (dissented)

• Panel affirmed district court order denying motion to compel arbitration.
• Gorsuch: “In my view, parties to a commercial deal could have hardly demonstrated with greater clarity an intention to arbitrate their disputes and I see no way we might lawfully rescue them from their choice.”

Chelsea Family Pharmacy, PLLC v. Medco Health Sols., Inc., 567 F.3d 1191 (10th Cir. 2009) (concurred in decision)

• Holding: “claim regarding alleged inadequacy of prescription drug administrator’s reimbursement rates was arbitrable”
• Gorsuch: “I write separately only to question this business of classifying arbitration clauses as ‘broad” or “narrow.’”

 

Class Actions

Hammond v. Stamps.com, Inc., 844 F.3d 909 (10th Cir. 2016) (wrote opinion)

• “amount in controversy was sufficient to meet Class Action Fairness Act (CAFA) minimum for removal”

 

Commerce Clause

Energy & Env’t Legal Inst. v. Epel, 793 F.3d 1169 (10th Cir.), cert. denied, 136 S. Ct. 595, 193 L. Ed. 2d 487 (2015) (wrote opinion)

• “statute did not violate dormant Commerce Clause”

United States v. Deiter, 576 F. App’x 814 (10th Cir. 2014) (joined opinion)

• Felon in possession of firearm law does not violate Commerce Clause

United States v. W., 576 F. App’x 729 (10th Cir. 2014) (joined opinion)

• Sentence enhancement for sexual contact does not violate Commerce Clause

Tarrant Reg’l Water Dist. v. Herrmann, 656 F.3d 1222 (10th Cir. 2011), aff’d, 133 S. Ct. 2120, 186 L. Ed. 2d 153 (2013) (joined opinion)

• “water compact insulated states’ water statutes from dormant Commerce Clause challenge insofar as challenge applied to surface water subject to that compact”

United States v. Freerksen, 457 F. App’x 769 (10th Cir. 2012) (joined opinion)

• Despite challenge to child pornography sentence under Commerce Clause, sentence was substantively reasonable

United States v. Gieswein, 495 F. App’x 944 (10th Cir. 2012) (joined opinion)

• “grant of COA did not preclude affirmance of district court order enforcing procedural defaults”

United States v. Hinckley, 550 F.3d 926 (10th Cir. 2008) abrogated by Reynolds v. United States, 132 S. Ct. 975, 181 L. Ed. 2d 935 (2012) (concurred in decision)

• Panel holds that SORNA applies to “sex offenders who failed to register during the ‘gap period’ between SORNA’s enactment and the Interim Rule”
• Gorsuch: “Hinckley’s interpretation is not without some grammatical appeal. But neither is it the only parsing of subsection (d) a reasonable reader might make. Nor are we permitted by the Supreme Court to interpret isolated statutory phrases solely according to grammatical diagrams. We must take account of Congress’s grammar to be sure, but the Court also requires us to take account of surrounding text, structure, and context.”

United States v. Rutherford, 472 F. App’x 863 (10th Cir. 2012) (wrote opinion)

• “statute criminalizing conspiracy to traffic in marijuana was within Congress’ constitutional authority to regulate interstate commerce”

City of Hugo v. Nichols, 656 F.3d 1251 (10th Cir. 2011) (joined opinion)

• “claim brought by Texas municipality was not redressable under dormant Commerce Clause”

United States v. Carel, 668 F.3d 1211 (10th Cir. 2011) (joined opinion)

• SORNA does not violate Commerce Clause

United States v. Finney, 316 F. App’x 752 (10th Cir. 2009) (joined opinion)

• “Congress did not exceed its authority under the Commerce Clause in enacting statute making it a crime for a felon to possess a firearm which has been shipped or transported in interstate commerce”

United States v. Webster, 334 F. App’x 189 (10th Cir. 2009) (joined opinion)

• sex offender registry does not violate Commerce Clause

United States v. Gordon, 272 F. App’x 674 (10th Cir. 2008) (joined opinion)

• felon-in-possession statute does not violate the Commerce Clause

United States v. Earle, 216 F. App’x 824 (10th Cir. 2007) (wrote opinion)

• “purely intrastate production of child pornography had sufficient nexus to interstate commerce to give rise to federal jurisdiction”

 

Criminal Law

United States v. Carloss, 818 F.3d 988 (10th Cir.), cert. denied, 137 S. Ct. 231, 196 L. Ed. 2d 178 (2016) (dissented)

• Panel affirmed district court’s denial of motion to suppress evidence obtained after police knocked on door despite presence of “No Trespassing” signs.
• Gorsuch: “The ‘knock and talk’ has won a prominent place in today’s legal lexicon. The term is used to describe situations in which police officers approach a home, knock at the front door, and seek to engage the homeowner in conversation and win permission to search inside. Because everything happens with the homeowner’s consent, the theory goes, a warrant isn’t needed. After all, the Fourth Amendment prohibits ‘unreasonable’ searches, and consensual searches are rarely that. No doubt for just this reason law enforcement has found the knock and talk an increasingly attractive investigative tool and published cases approving knock and talks have grown legion. But in the constant competition between constable and quarry, officers sometimes use knock and talks in ways that test the boundaries of the consent on which they depend.”

United States v. Spaulding, 802 F.3d 1110 (10th Cir. 2015), cert. denied, 136 S. Ct. 1206, 194 L. Ed. 2d 211 (2016) (dissented)

• Panel held that district court did not have jurisdiction “ to set aside a criminal judgment that contains a term of imprisonment at any time and for any reason.”
• Gorsuch: “Say a criminal defendant enters an involuntary guilty plea. Maybe because of improper threats. Or maybe thanks to unlawful inducements. After sentencing, he seeks to withdraw the involuntary plea without the necessity of a full appeal or a collateral lawsuit. Seeing the problem with the plea, the government agrees and joins the defendant’s request. Can the district court grant the uncontested motion? Or must it grind on and gift the parties additional months and maybe years of needless judicial process to arrive at a result everyone admits the law requires? All while, most likely, the defendant sits in prison?”

Webb v. Thompson, 643 F. App’x 718 (10th Cir. 2016) (concurred in part and dissented in part)

• Panel affirmed denial of qualified immunity to correctional officers on illegal strip search and prolonged detention claims
• Gorsuch: “I join my colleagues in all respects but one. Because Correctional Officers West, Johnson, and Flatt allegedly contributed to the delay in Mr. Webb’sarraignment, my colleagues reason, these individuals are not entitled to qualified immunity. Respectfully, however, I don’t believe this conclusion follows from that premise”; plaintiff “has not identified any decision clearly establishing as a matter of federal law that the right to a timely arraignment imposes a correlative duty on a jail’s correctional officers to ensure he is brought before a magistrate in a timely fashion”

United States v. Nicholson, 721 F.3d 1236 (10th Cir. 2013) (dissented)

• Panel reversed district court’s denial of motion to suppress evidence
• Gorsuch: “My colleagues suggest that an investigative detention resting on an officer’s mistake of law always violates the Fourth Amendment—even when the law at issue is deeply ambiguous and the officer’s interpretation entirely reasonable. Having found a Fourth Amendment violation, they proceed to order the suppression of all evidence found during the detention and direct the dismissal of all charges. Respectfully, I have my doubts.”

United States v. Dutton, 509 F. App’x 815 (10th Cir. 2013) (dissented)

• Panel held that evidence found in storage unit had to be suppressed because warrant was not supported by probable cause and good-faith exception did not apply because warrant was patently defective
• Gorsuch: “Extending Gonzalesto require exclusion in this case is not required by our precedent (it is closer to inconsistent with it) and it leads us to issue a decision today that is inconsistent as well with the Supreme Court’s directions in  Respectfully, I decline to follow that path.”

United States v. Benard, 680 F.3d 1206 (10th Cir. 2012) (concurred in part and dissented in part)

• Panel reversed convictions, ruling that error in admitting post-arrest statements was not harmless
• Gorsuch: “But in this case, on the evidence and argument before us, the government has met its high burden of showing harmless error and I would affirm.”

United States v. Rosales-Garcia, 667 F.3d 1348 (10th Cir. 2012) (dissented)

• Panel reversed district court’s application of sentencing enhancement guideline
• Gorsuch: “So it is the compositional cloud now lifts. We know that deportation must come after a conviction. That conviction must be for a felony drug trafficking offense. And that offense must result in a sentence greater than 13 months. But in figuring the length of the sentence we can now be sure that we must include ‘any terms of imprisonment given upon revocation of probation, parole, or supervised release.’ In this case, of course, that means Mr. Rosales was indeed eligible for a sentencing enhancement. In total and eventually, his sentence for a drug trafficking felony well exceeded 13 months. So the district court got it right and should be affirmed.”

Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) (wrote opinion)

• Court rejected inmate’s claim that his Section 2255 habeas claim was inadequate or ineffective “on basis that it was likely that neither prisoner nor his counsel at time of first motion had imagined particular novel statutory interpretation argument ultimately vindicated in subsequent United States Supreme Court precedent”

United States v. Raymond, 369 F. App’x 958 (10th Cir. 2010) (concurred in part and dissented in part)

• Case involved charges against member of Aryan Brotherhood; Gorsuch: “I agree with the second half of the majority’s opinion and join its decision to reinstate the Mudersbach attempted murder charges. Respectfully, however, I submit that the same logic that compels this conclusion also compels the reinstatement of the George murder charges.”

Williams v. Jones, 583 F.3d 1254 (10th Cir. 2009) (dissented from denial of rehearing en banc)

• Panel, over Gorsuch dissent (see below) had reversed and remanded for determination of whether remedy for ineffective assistance of counsel during plea bargaining was constitutionally adequate
• Gorsuch: “It’s not every day we overturn a state jury verdict for first-degree murder when the defendant admits he received a fair trial and no one questions that his conviction is supported by overwhelming evidence. It’s not every day we exacerbate a split of authority over the recognition of a new constitutional right, and do so despite warning signs from the Supreme Court against our course. And it’s not every day we refuse to rehear a panel decision that every single state within our jurisdiction has urged us to revisit. Today, we do all these things, and I respectfully dissent.”

Williams v. Jones, 571 F.3d 1086 (10th Cir. 2009) (dissented)

• Gorsuch: “The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial. By his own admission, Michael Williamsreceived just such a trial, at the end of which he was convicted of first degree murder by a jury of his peers. We have no authority to disturb this outcome.”

United States v. Ford, 550 F.3d 975 (10th Cir. 2008) (dissented)

• Panel rejected claim of Brady violation, holding that evidence not disclosed to defense was not material to the defense
• Gorsuch: “I cannot help but conclude that the suppressed pre-October 5 email was material to Mr. Ford’s entrapment defense.”

 

Death Penalty

The Estate of Lockett by & through Lockett v. Fallin, No. 15-6134, 2016 WL 6695780 (10th Cir. Nov. 15, 2016) (joined opinion)

• Execution was not cruel and unusual and did not violate inmate’s right to due process

Cannon v. Trammell, 796 F.3d 1256 (10th Cir. 2015), cert. denied sub nom. Cannon v. Duckworth, 136 S. Ct. 2517, 195 L. Ed. 2d 848 (2016) (joined opinion)

• “petitioner was not entitled to evidentiary hearing”

Eizember v. Trammell, 803 F.3d 1129 (10th Cir. 2015), cert. denied sub nom. Eizember v. Duckworth, 136 S. Ct. 2468, 195 L. Ed. 2d 807 (2016) (wrote opinion)

• “State appellate court reasonably determined that excusal for cause, based on prospective juror’s views on death penalty, was not required”

Williams v. Trammell, 782 F.3d 1184 (10th Cir. 2015), cert. denied sub nom. Williams v. Warrior, 136 S. Ct. 806, 193 L. Ed. 2d 726 (2016) (concurred in opinion)

• Court’s determination not unreasonable and counsel not deficient

Warner v. Gross, 776 F.3d 721 (10th Cir.), cert. granted, 135 S. Ct. 1173, 190 L. Ed. 2d 929 (2015), and aff’d sub nom. Glossip v. Gross, 135 S. Ct. 2726, 192 L. Ed. 2d 761 (2015), reh’g denied, 136 S. Ct. 20, 192 L. Ed. 2d 990 (2015) (joined opinion)

• “district court did not abuse its discretion in concluding that prisoners failed to establish substantial likelihood of success on the merits of Eighth Amendment challenge”

Martinez v. Williams, 553 F. App’x 806 (10th Cir. 2014) (wrote opinion)

• Defendant did not make substantial showing of the denial of a constitutional right

Grant v. Trammell, 727 F.3d 1006 (10th Cir. 2013) (wrote opinion)

• “accumulation of errors did not warrant reversal of death sentence”

Glossip v. Trammell, 530 F. App’x 708 (10th Cir. 2013) (joined opinion)

• Defendant not entitled to federal habeas relief and did not receive ineffective assistance of counsel

Howell v. Trammell, 728 F.3d 1202 (10th Cir. 2013) (joined opinion)

• no Confrontation Clause violation

Lott v. Trammell, 705 F.3d 1167 (10th Cir. 2013) (joined opinion)

• “trial court’s instruction regarding aiding and abetting did not so infect entire murder trial that the resulting conviction violated due process”

Wilson v. Trammell, 706 F.3d 1286 (10th Cir. 2013) (concurred in decision)

• “prisoner was not deprived of effective assistance of counsel during penalty phase of capital murder trial”

Banks v. Workman, 692 F.3d 1133 (10th Cir. 2012) (wrote opinion)

• “allowing petitioner’s brother to be questioned after invoking Fifth Amendment privilege was harmless error”

DeRosa v. Workman, 696 F.3d 1302 (10th Cir. 2012) (joined denial of rehearing en banc)

• Case involves Oklahoma courts allowing testimony from victim’s relatives about death penalty.

Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012) (concurred in part, dissented in part)

• Gorsuch: “I agree with much more of the court’s very fine opinion than not, and I join all but its discussion whether Mr. Hooks enjoyed a constitutional right to counsel at his post-conviction Atkins proceeding, see Op. § II.C.5.a, and its holding that Mr. Hooks’s counsel was constitutionally ineffective at the sentencing phase of his original trial, see Maj. Op. § II.D.2.”

Flores v. Wilson, 450 F. App’x 749 (10th Cir. 2011) (joined opinion)

• “state prisoner did not present rare and exceptional circumstance to justify tolling one-year limitations period governing petition”

Selsor v. Workman, 644 F.3d 984 (10th Cir. 2011) (joined opinion)

• “sentencing of defendant to death following retrial did not violate prohibition against double jeopardy”

Gardner v. Garner, 383 F. App’x 722 (10th Cir. 2010) (joined opinion)

• “dual role played by state attorney general’s office with respect to the clemency proceeding did not deny inmate an impartial hearing”

Lambert v. Workman, 594 F.3d 1260 (10th Cir. 2010) (joined opinion)

• “habeas relief was not permitted on double jeopardy claim”

Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010) (joined opinion)

• “prisoner failed to establish a substantial likelihood of prevailing on his due process challenge to State’s revised protocol”

United States v. Lujan, 603 F.3d 850 (10th Cir. 2010) (joined opinion)

• “risk of juror confusion did not warrant preclusion of the prior crimes evidence”

Wackerly v. Jones, 398 F. App’x 360 (10th Cir. 2010) (joined opinion)

• Lethal injection protocol not shown to create risk of severe pain to warrant stay

In re Wackerly, No. 10-7062, 2010 WL 9531121 (10th Cir. Sept. 3, 2010) (joined opinion)

• Motion to file second or successive habeas petition denied

Gardner v. Galetka, 568 F.3d 862 (10th Cir. 2009) (joined opinion)

• “counsel was not constitutionally ineffective during the guilt phase of murder trial”

Matthews v. Workman, 577 F.3d 1175 (10th Cir. 2009) (wrote opinion)

• “juror’s misconduct did not warrant habeas relief”; “evidence was sufficient to sustain conviction” ; “trial counsel was not deficient”

Taylor v. Workman, 554 F.3d 879 (10th Cir. 2009) (joined opinion)

• “state court’s decision to deny defendant a second degree murder instruction was an unreasonable application of clearly established law”

Wackerly v. Workman, 580 F.3d 1171 (10th Cir. 2009) (wrote opinion)

• “defense counsel’s allegedly deficient performance during sentencing did not constitute ineffective assistance”

Wilson v. Sirmons, 549 F.3d 1267 (10th Cir. 2008), opinion after hearing en banc ordered sub nom. Wilson v. Workman, 577 F.3d 1284 (10th Cir. 2009) (dissented from en banc decision)

• En banc court ruled that when Oklahoma Court of Criminal Appeals declines to grant evidentiary hearing on ineffective assistance of counsel claim, “the OCCA’s denial of the claim is not an adjudication on the merits to which the federal courts owe AEDPA deference.”
• In dissent, Gorsuch wrote: “This case requires us to interpret the words of a federal statute. That statute says writs of habeas corpus “shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings” unless the state court’s decision is contrary to a Supreme Court precedent, or unless it rests on an unreasonable application of the Court’s cases or an unreasonable reading of the facts before it. 28 U.S.C. § 2254(d). This language seemingly brooks no exception. Yet, rather than applying AEDPA’s deferential standard to the claims before us, the court today finds itself applying de novo review. How can this be?”

 

Education

A.M. v. Holmes, 830 F.3d 1123 (10th Cir. 2016) (dissented)

• Panel upheld claim of qualified immunity for police officer who handcuffed and detained 13-year-old student for disrupting class by fake-burping
• Gorsuch: “If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.”

Hawker v. Sandy City Corp., 591 F. App’x 669 (10th Cir. 2014) (joined opinion)

• “use of twist-lock to arrest student was objectively reasonable under Fourth Amendment”

Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775 (10th Cir. 2013) (joined opinion)

• “IDEA did not impose obligation for parents to exhaust administrative procedures with regard to claims of physical abuse”
• Placing mentally disabled child in timeout room did not shock the conscience

Thompson R2-J School Dist. v. Luke P., ex rel. Jeff P., 540 F.3d 1143 (10th Cir. 2008) (wrote opinion)

• “individualized education program (IEP) was reasonably calculated to enable student to make progress toward goals, and thus provided student with free appropriate public education (FAPE)”

 

Election Law

Rocky Mountain Gun Owners v. Williams, No. 15-1336, 2016 WL 6574000 (10th Cir. Nov. 7, 2016) (joined opinion)

• “The district court made a clearly erroneous factual finding that the parallel state court proceedings were still ongoing”

Riddle v. Hickenlooper, 742 F.3d 922 (10th Cir. 2014) (concurred in decision)

• Panel ruled for plaintiff on equal protection claim challenging state’s imposition of lower limits on contributions to write-in, unaffiliated and minor-party candidates than on contributions to major-party candidates
• In concurrence, Gorsuch wrote: “[S]ome thoughtful judges have questioned whether it is appropriate to lift what is an admittedly ‘fundamental right’ found in the First Amendment and analyze its infringement here, in the Fourteenth Amendment context, shorn of what the Court has said about the appropriate level of scrutiny applicable to that right in its native doctrinal environment,” but “Whateverlevel of scrutiny one might reasonably apply here—even spotting (without in any way granting) Colorado its wish that we lift Buckley‘s somewhat more relaxed level of scrutiny from its First Amendment home and plunk it down into this Fourteenth Amendment equal protection setting—the State’s statutory scheme still pretty clearly flunks.”

 

Employment Law

N.L.R.B. v. Cmty. Health Servs., 812 F.3d 768 (10th Cir. 2016) (dissented)

• Panel upheld NLRB order that disregarded interim earnings in calculating award of back pay
• Gorsuch: “The NLRB’sorder effectively seeks to adopt a new rule governing the calculation of backpay in cases where a collective bargaining employer unlawfully reduces the hours of unionized employees. There can, of course, be no doubt that Congress has invested the Board with considerable power to shape labor relations in this country and to provide remedies like backpay in response to employer misconduct. But in our legal order federal agencies must take care to respect the boundaries of their congressional charters. They may not treat similarly situated classes of persons differently without a rational explanation. And they may not depart from their own existing rules and precedents without a persuasive explanation.”

TransAm Trucking, Inc. v. Admin. Review Bd., United States Dep’t of Labor, 833 F.3d 1206 (10th Cir. 2016) (dissented)

• Panel upheld reinstatement order of trucker who claimed he was fired unlawfully
• Gorsuch: “It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”

Hwang v. Kansas State University, 753 F.3d 1159 (10th Cir. 2014) (wrote opinion)

• “university did not violate Rehabilitation Act by denying professor more than six months of sick leave”

Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174 (10th Cir. 2011) (wrote opinion)

• “Ledbetter Act did not apply to extend the 300-day administrative limitations period on employees’ ADEA claims”

Richison v. Ernest Grp., Inc., 634 F.3d 1123 (10th Cir. 2011) (wrote opinion)

• “employee’s claims first accrued when he turned in his resignation ‘forfeit[ing] ownership of all 125 shares,’ company removed him from the corporation’s roster of shareholders, and company began treating him as employee, not owner, in its tax filings”; claims were time-barred under applicable limitations statutes

Johnson v. Weld Cty., Colo., 594 F.3d 1202 (10th Cir. 2010) (wrote opinion)

• “district court did not abuse its discretion in ruling that employee’s direct evidence of sex discrimination failed to create triable question of fact because it was inadmissible hearsay”

Kastl v. Maricopa Cty. Cmty. Coll. Dist., 325 F. App’x 492 (9th Cir. 2009) (joined opinion)

• Panel of the U.S. Court of Appeals for the 9th Circuit, with Gorsuch sitting by designation, issued a memorandum opinion in a sex-discrimination case; transgender plaintiff had challenged employer’s refusal to allow her to use the women’s bathroom until she had completed gender reassignment surgery.
• Panel held that plaintiff had made out a prima facie case of gender discrimination under Title VII, but that after employer claimed safety as a justification for the ban, plaintiff did not meet her burden of establishing that her gender was the motivating factor.

Strickland v. United Parcel Serv., Inc., 555 F.3d 1224 (10th Cir. 2009) (concurred in part and dissented in part)

• Gorsuch: “The difficulty is that the record in this case shows that Mr. Roten harassed male employees in very much the same manner as he harassed Ms. Strickland.”

Zamora v. Elite Logistics, Inc., 478 F.3d 1160 (10th Cir. 2007) (en banc) (concurred in decision)

• Holding: “employee failed to create a triable issue of fact as to whether or not employer’s proffered justification for suspending him was merely a pretext for race and national origin discrimination (per equally divided court)”
• Gorsuch: “Under these circumstances, it is unnecessary for us to address the impact of IRCA’s anti-discrimination provision and its underlying policies on Title VII analysis, and I would leave open these matters for resolution another day when the parties before us have reason and opportunity to address them fully.”

Young v. Dillon Companies, Inc., 468 F.3d 1243 (10th Cir. 2006) (wrote opinion)

• “employer’s proffered nondiscriminatory reason for terminating employee was not pretextual”

 

Environmental Law

Hydro Res., Inc. v. EPA, 608 F.3d 1131 (10th Cir. 2010) (en banc) (wrote opinion)

• “petitioner suffered injury in fact such that it had standing to contest EPA’s determination”

Wyoming v. U.S. Dep’t of Interior, 587 F.3d 1245 (10th Cir. 2009) (wrote opinion)

• “Park Service’s promulgation of new regulation mooted case”

 

Gun Laws

Pinder v. Mitchell, No. 15-4023, 2016 WL 6962082 (10th Cir. Nov. 29, 2016) (joined opinion)

• “gun owners were required to avail themselves of state-level procedures to seek return of gunsbefore challenging taking of guns on procedural due process claim brought under § 1983”

Cowan v. Oklahoma, No. 16-5030, 2016 WL 4069843 (10th Cir. July 29, 2016) (joined opinion)

• “The Court of Appeals held that district court lacked subject matter jurisdiction to consider merits of plaintiff’s SecondAmendment ”

United States v. Reese, 559 F. App’x 777 (10th Cir. 2014) (wrote opinion)

• “overturned because someone … previously convicted of a felony may lawfully possess guns if he ‘has had civil rights restored'”

United States v. Games-Perez, 695 F.3d 1104 (10th Cir. 2012) (dissented from denial of rehearing en banc)

• Gorsuch: “People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today, this court votes narrowly, 6 to 4, against revisiting this state of affairs. So Mr. Games–Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land. Of course, rehearingen banc is reserved only for questions of exceptional importance. 10th Cir. R. 35.1(A). And I fully appreciate the considered judgment of my colleagues who vote against reconsidering our circuit precedent: after all, it is both longstanding and consistent with the rulings of several other courts. Even so, I respectfully submit this extraordinary situation warrants reconsideration.”

United States v. Games-Perez, 667 F.3d 1136 (10th Cir. 2012) (concurred in decision)

• “government was not required to prove that the defendant knew that he had previously been convicted of a felony”

United States v. Molina, 484 F. App’x 276 (10th Cir. 2012) (joined opinion)

• “defendant’s conviction did not violate his right to bear arms under Second Amendment”

United States v. Fraser, 647 F.3d 1242 (10th Cir. 2011) (wrote opinion)

• “defendant did not lack reasonable lawful alternative to taking possession of firearm, as required to establish necessity defense”

United States v. Pope, 613 F.3d 1255 (10th Cir. 2010) (wrote opinion)

• Defendant’s motion to dismiss indictment could not be decided pretrial

United States v. Nolan, 342 F. App’x 368 (10th Cir. 2009) (joined opinion)

• “sentence did not violate defendant’s Second Amendment right to bear arms”

 

Immigration

Iliev v. Holder, 613 F.3d 1019 (10th Cir. 2010) (wrote opinion)

• “BIA applied correct legal standard by requiring alien to show that he entered into the marriage in good faith”

United States v. Adame-Orozco, 607 F.3d 647 (10th Cir. 2010) (wrote opinion)

• “defendant was not improperly deprived of the opportunity for judicial review of his deportation proceedings”

 

Intellectual Property

Storagecraft Tech. Corp. v. Kirby, 744 F.3d 1183 (10th Cir. 2014) (wrote opinion)

• “software company was not precluded from seeking “reasonable royalty” damages under Utah’s Uniform Trade Secrets Act”

Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008) (wrote opinion)

• “digital wire-frame computer models that depicted unadorned images of manufacturer’s vehicles without any individualizing features were not sufficiently original to warrant copyright protection”

Russo v. Ballard Med. Prods., 550 F.3d 1004 (10th Cir. 2008) (wrote opinion)

• “inventor’s claims did not necessarily depend on a substantial question of patent law, as to give Federal Circuit exclusive jurisdiction of appeal”

 

Personal Jurisdiction

Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008) (wrote opinion)

• “law of forum state had to be applied with regard to personal jurisdiction issue”

 

Privacy

United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016) (wrote opinion)

• “organization that was statutorily obliged to operate as official national clearinghouse for information about missing and exploited children was a government entity for purpose of determining whether its search of defendant’s e-mail violated Fourth Amendment”

Lewis v. Tripp, 604 F.3d 1221 (10th Cir. 2010) (wrote opinion)

• “chiropractor had article III standing to challenge the search”

Mink v. Knox, 613 F.3d 995 (10th Cir. 2010) (concurred in decision)

• Holding: “complaint plausibly asserted requisite causal connection between prosecutor’s conduct and the search and seizure at publisher’s home”
• Gorsuch: “To decide the case currently before us, it’s enough to say we are bound by Pring,and so was the district court.”

Regan-Touhy v. Walgreen Co., 526 F.3d 641 (10th Cir. 2008) (wrote opinion)

• “district court did not abuse its discretion in denying customer’s motion to compel pharmacy to produce logs showing which employees viewed her electronic pharmacy records”

 

Qualified Immunity

Porro v. Barnes, 624 F.3d 1322 (10th Cir. 2010) (wrote opinion)

• Court upheld district grant of summary judgment against plaintiff in suit for excessive force against supervisors of prison guard who tasered plaintiff; Gorsuch: “ Porro won a significant judgment against Mr. Lovett, the individual who tasered him. With this result, no party to this appeal has any quarrel. We hold only, as did the district court, that Mr. Porro has failed to adduce evidence suggesting that Messrs. Barnes or Bryant also bear legal responsibility for the violation of his constitutional rights.’

Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007) (en banc) (concurred in part and dissented in part)

• En banc court rejects “the notion that an excessive force claim is subsumed in an unlawful arrest claim in the facts presented by this case”
• Gorsuch would have granted qualified immunity on one claim of unlawful arrest because of “the absence of any authority putting the officers on clear notice of the illegality of their seizure” and would have held that “where the facts surrounding a seizure are not themselves patently excessive …, more than ade minimis injury is required to suggest that the force used was excessive.”

 

Religion

Farris v. Frazier, 599 F. App’x 851 (10th Cir. 2015), cert. dismissed, 136 S. Ct. 833, 193 L. Ed. 2d 703 (2016) (wrote opinion)

• Inmate with claim under the Religious Land Use and Institutionalized Persons Act did not exhaust administrative remedies

Harvey v. Segura, 646 F. App’x 650 (10th Cir. 2016) (wrote opinion)

• Officers have qualified immunity, Gorsuch wrote, “because it wasn’t clearly established at the time of the incident here that a prisoner had a right to be free from a strip search by a guard of the opposite sex on the basis of religious convictions.”

Gad v. Kansas State Univ., 787 F.3d 1032 (10th Cir. 2015) (joined opinion)

• “Title VII’s verification requirement was not a jurisdictional requirement”

Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 799 F.3d 1315 (10th Cir. 2015) (dissented from denial of rehearing en banc)

• Panel decision wrong for not accepting plaintiff’s statements about their religious beliefs
• The Supreme Court later vacated and remanded the panel’s decision.

Miller v. Scott, 592 F. App’x 747 (10th Cir. 2015) (wrote opinion)

• Inmate “failed to exhaust his administrative remedies” and claim based on denial of kosher or halal meals frivolous

Ali v. Wingert, 569 F. App’x 562 (10th Cir. 2014) (wrote opinion)

• “prison policy requiring inmate to include committed name alongside religious name on mail did not violate RLUIPA “

Hale v. GEO Grp., Inc., 580 F. App’x 687 (10th Cir. 2014) (joined opinion)

• “appeal is frivolous”

Krumm v. Holder, 594 F. App’x 497 (10th Cir. 2014) (joined opinion)

• “principles of res judicata barred pro se litigant from pursuing claims”

Merrell v. Allred, 565 F. App’x 692 (10th Cir. 2014) (joined opinion)

• No exceptional circumstances warranting relief from summary judgment present

Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014) (wrote opinion)

• Factual issue existed as to whether policy against sweat lodge was least restrictive means of achieving a compelling government interest

Ali v. Province, 550 F. App’x 619 (10th Cir. 2013) (wrote opinion)

• Prisoner did not exhaust administrative remedies

Ciempa v. Jones, 511 F. App’x 781 (10th Cir. 2013) (joined opinion)

• “no cause of action under RLUIPA for individual-capacity claims”

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), aff’d sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014) (concurred in decision)

• En banc court held that petitioning companies, closely held family businesses, were likely to prevail on their claim that the Affordable Care Act’s contraceptive mandate substantially burdened their exercise of their religious beliefs
• Gorsuch would have held that the business-owners as individuals were entitled to relief, stating that “it is their personal involvement in facilitating access to devices and drugs that can have the effect of destroying a fertilized human egg that their religious faith holds impermissible.” Moreover, he added, “it is not for secular courts to rewrite the religious complaint of a faithful adherent.”

Ciempa v. Jones, 477 F. App’x 508 (10th Cir. 2012) (joined opinion)

• “racist beliefs of prisoner’s religion were relevant to the injury and public interest factors for determining whether to issue preliminary injunction”

Kaiser v. Colorado Dep’t of Corr., 504 F. App’x 739 (10th Cir. 2012) (wrote opinion)

• “no evidence that appointing authority did not have good faith belief that conduct by trainee was unsatisfactory”

Williams v. Sibbett, 442 F. App’x 385 (10th Cir. 2011) (joined opinion)

• “prisoner waived appellate review of claim under Religious Land Use and Institutionalized Persons Act”

Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) (concurred in decision)

• Panel remanded for district court to determine whether burden on inmate’s religion from denial of halal meals was justified
• Gorsuch: “This case compels us to address only whether prison officials can violate RLUIPA by denying an inmate in their charge all means of accessing food he can eat consistent with his (uncontested) sincerely held religious beliefs — thus effectively forcing him to choose between remaining pious or starving. We hold that RLUIPA does indeed apply in these circumstances. Whether and to what extent the statute goes further is a question for another day.”

Am. Atheists, Inc. v. Davenport, 637 F.3d 1095 (10th Cir. 2010) (dissented from denial of rehearing en banc)

• Panel had held that erection of memorial crosses on highway violated the establishment clause
• Gorsuch: “Our court has now repeatedly misapplied the ‘reasonable observer’ test, and it is apparently destined to continue doing so until we are told to stop”; the “court’s holding does and must rest on the view that anything a putatively ‘reasonable observer’ could think ‘endorses’ religion is constitutionally problematic.”

Boles v. Dansdill, 361 F. App’x 15 (10th Cir. 2010) (joined opinion)

• Various policies did not affect exercise of religion

United States v. Quaintance, 608 F.3d 717 (10th Cir. 2010) (wrote opinion)

• “defendants were not sincere with respect to their purported religious beliefs that marijuana was a deity and sacrament”

Green v. Haskell Cty. Bd. of Comm’rs, 574 F.3d 1235 (10th Cir. 2009) (dissented from denial of rehearing en banc)

• Panel had held that display of Ten Commandments monument violated establishment clause.
• Gorsuch: “Respectfully, I believe we should have reheard this case for at least three reasons. First, by applying the Lemontest to a Ten Commandments display after Van Orden, the panel’s analysis conflicts with the views of several of our sister circuits. Second, by then focusing on the perceptions of an unreasonable and mistake-prone observer, the panel’s analysis conflicts with the Supreme Court’s explanation of Lemon’s endorsement test and our sister circuits’ application of it. Finally, by making us apparently the first court of appeals since Van Orden to strike down an inclusive display of the Ten Commandments, the panel opinion mistakes the Supreme Court’s clear message that displays of the decalogue alongside other markers of our nation’s legal and cultural history do not threaten an establishment of religion.”

Queen v. McIntire, 290 F. App’x 162 (10th Cir. 2008) (wrote opinion)

• Inmate did not exhaust administrative remedies

Zapata v. Brandenburg, 291 F. App’x 150 (10th Cir. 2008) (wrote opinion)

• “alleged confinement to room for periods of time and ultimate removal from faith-based program for refusing to convert to different religious faith did not violate prisoner’s right to free exercise of religion”

Summum v. Pleasant Grove City, 499 F.3d 1170 (10th Cir. 2007) (joined dissent from denial of rehearing en banc)

• Cases involved discretion of city park managers to allow installation of privately-funded Ten Commandments monuments; dissent argued that “any messages conveyed by the monuments they have chosen to display are ‘government speech,’ and there is no ‘public forum’ for uninhibited private expression.

 

Securities

MHC Mut. Conversion Fund, L.P. v. Sandler O’Neill & Partners, L.P., 761 F.3d 1109 (10th Cir. 2014) (wrote opinion)

• “shareholders failed to adequately allege there was no objectively reasonable basis for opinion in offering statement that corporation expected rebound in market for its portfolio of mortgage-backed securities”

 

Tax

Direct Mktg. Ass’n v. Brohl, 814 F.3d 1129 (10th Cir. 2016), cert. denied, (U.S. Dec. 12, 2016), and cert. denied, (U.S. Dec. 12, 2016) (concurred in decision)

• “state’s notice and reporting requirements did not violate dormant Commerce Clause”

Feinberg v. Comm’r, 808 F.3d 813 (10th Cir. 2015) (wrote opinion)

• “taxpayers were not entitled to writ of mandamus”

Direct Mktg. Ass’n v. Brohl, 735 F.3d 904 (10th Cir. 2013), rev’d, 135 S. Ct. 1124, 191 L. Ed. 2d 97 (2015) (joined opinion)

• Tax Injunction Act “deprived the district court of jurisdiction to enjoin Colorado’s tax collection effort, we remand to the district court to dismiss DMA’s Commerce Clause claims”

In re Krause, 637 F.3d 1160 (10th Cir. 2011) (wrote opinion)

• “debtor’s transfer of assets to his children’s trusts was fraudulent”

 

We are grateful to our readers for suggesting cases we’ve missed, Adam Feldman at Empirical SCOTUS for compiling his own list of Gorsuch’s most-cited opinions and dissents, and Gibson Dunn for compiling a list with emphasis on issues of interest to the business community.

CLICK HERE FOR FULL VERSION OF THIS STORY