United States v Baker

The government filed a Rule of Criminal Procedure 35(b) motion more than a year after Baker’s original sentencing seeking a six month reduction to Baker’s sentence. The district court ruled that because the information provided by Baker was provided to the government less than a year after sentencing and was useful to the government both less than a year after sentencing and after the year window, the motion was untimely and thus the district court lacked jurisdiction to hear the motion. The panel affirmed holding that under the plain language of 35(b), there is a one year window to file a reduction of sentence motion with the exception of motions based on information which is not useful to the government until more than a year after sentencing. Here, the information was useful in part before the one year deadline and thus the exception did not apply. The panel noted that a procedure exists to accommodate situations like this, but, the government failed to discover it in time.

McDonald v Wise

McDonald was accused by Wise of sexual harassment. He was terminated by the City of Denver without a hearing and City opposed McDonald’s claim for unemployment at a benefits hearing. The mayor of Denver told the press that McDonald was fired for serious misconduct. McDonald sued Wise, the mayor, his press secretary and the City for constitutional violations, breach of contract, defamation and unlawful dissemination of information. The district court dismissed all counts. The panel affirmed in part and reversed and remanded in part. It held that McDonald had no property interest in his position as the city charter designated his position as at will and the mayor had no authority to change that status. It affirmed the dismissal of the breach of contract claim on the same reasoning. However, the panel held McDonald had a liberty interest in his good name and the mayor’s statements deprived him of that interest. The panel held that the City failed to provide due process as it did not hold the required name clearing hearing or any hearing for that matter and the peripheral benefits hearing was not an adequate substitute. As this right was clearly established at the time of the termination, both the mayor as final policy maker and the City as his employer do not have qualified immunity. The panel affirmed the dismissal of the press secretary as she did not have policymaking power. It affirmed the dismissal of the disclosure claim as there is no private right of action under the applicable statute. The panel reversed as to the defamation claim against Wise noting Colorado law grants immunity as defense and when facts are disputed, as here, the jury determines if the defense has been proved. The panel held that the complaint set forth sufficient facts (Wise continuing to call McDonald, participating in a gift exchange, going to church with him and being introduced to his family all after the alleged harassment) to support an inference of reckless disregard and thus dismissal was improper. The panel likewise held McDonald stated a claim for defamation as the facts support an inference of bad faith and actual malice which defeat any privilege enjoyed by Wise to report misconduct to her employer. The liberty and defamation claims were remanded for further proceedings.