Navajo Nation, et al. v Dalley et al.

Nation appealed summary judgment to Dalley et al. on its declaratory judgment action seeking a declaration that New Mexico state courts do not have jurisdiction over tort claims arising from acts which took place on Nation’s casino and a purported consent to state court jurisdiction was void. The panel reversed and remanded with instructions to grant declaratory relief. It held that it had jurisdiction over the appeal under circuit precedent as Nation sought declaratory relief against state regulation claiming preemption. It the Indian Gaming Regulation Act did not authorize state court jurisdiction here as slip and fall claims which do not allege the injury resulted from actual paly of gambling games at the casino are not within the scope of gaming activity, namely playing the games at the casino, and thus allocation of civil jurisdiction over such tort claims is outside the scope 25 USC 2710(d)3)’s authorization to enter into gaming compacts, legislative history cannot overcome unambiguous text, the catch all provision does not have a jurisdiction allocation provision, the negative implication cannon and surplusage avoidance cannon both reinforce the conclusion that the catch all provision does not reach jurisdictional allocation, the fact that labor relations may be included in the catch all provision does mean slip and fall torts are included and the decision does not cast doubt on labor and wage and safety provisions in other compacts.

United States v McLinn

McLinn appealed the denial of his motion to dismiss the indictment in this gun case. The panel vacated and remanded holding the district court erred in treating the meaning of 18 USC 922(g)(4) as a jury question instead of a question of law as it involves statutory construction and this conclusion is consistent  with circuit and other circuit precedent on 922(g)(4) and its predecessor and remanded for further proceedings as the record was insufficient to answer the legal issues involved on appeal.

Bailey v Independent School District No. 69 of Canadian County, Oklahoma and McDaniel

Bailey appealed summary judgment to district and McDaniel on his First Amendment retaliation claim. The panel affirmed in part, reversed in part and remanded. It reversed as to District because criminal sentencing is an issue of public concern as sentencing proceedings are publicly funded and take place on the public record, implicate public safety and the future of those convicted of crimes, Bailey’s letters to the sentencing judge and the judge hearing the motion to reduce sentence concern the potential release of a prisoner back into society and held affirmation on alternate grounds was unavailable here because factual disputes exist as to whether Bailey acted in in official capacity, there was no actual disruption of District operation occurred in the one and two year periods after the letters were written and submitted, there was evidence that other employees were allowed to use official letterhead for private matters and thus the panel had to assume Bailey was terminated for the content of his letters all preclude. It affirmed as to McDaniel because the issue of whether letter submitted during criminal sentencing and release proceedings are of public concern was open as of the date bailey as fired and thus there was no clearly established law on the issue.

Armstrong v The Arcanum Group, Inc.

Armstrong appealed summary judgment to Group on her retaliation claim. The panel affirmed. It held that both the False Claims Act and the National defense authorization Act require proof the employer knew of plaintiff’s whistleblowing activities, Armstrong failed to present evidence that the manager who fired her actually knew about her allegations of fraud against the Bureau of Land Management, the record did not support a finding of deliberate ignorance, constructive knowledge doctrine is inapplicable due to the requirement termination be “because of” protected activity and cat’s paw theory is not satisfied here as the alleged supervisors worked for the Bureau not Group.

Ukeiley v United States Environmental Protection Agency

Ukeiley sought review of Agency’s approval of Colorado’s dust pollution abatement plan for the Lamar, Colorado Area. The panel affirmed. It held that 42 USC 7619(b))A)(iii) which authorizes the exclusion of certain “exceptional events” when analyzing an abatement plan is not ambiguous as the term is explicitly defined in the provision, certain events are categorically excluded, the provision distinguished between natural events and man caused events and therefore clearly and unambiguously allowed the exclusion of the unusual and extreme wind days that Agency excluded in its analysis and that analysis was based on competent data and was thus not arbitrary or capricious.

Eisenhour v Weber County, Storey et al.

Storey appealed the denial of his motion for judgment as a matter of law on Eisenhour’s sexual harassment claim an Eisenhour appealed judgment to County on her claims against it and the damages award against Storey. The panel, with one judge concurring, affirmed except as to one damages argument by Eisenhour. It affirmed as to Storey holding evidence that Storey gave Eisenhour an erotic poem, described an erotic dream to Eisenhour, touched Eisenhour with his genitals while both were clothed and became possessive of Eisenhour was sufficient to sustain the verdict and there was no error in admitting the poem into evidence as it was relevant to the claim, the jury found it was discovered at a time which was not remote and there was no unfair prejudice to Storey. It affirmed as Eisenhour in part holding the disqualification motions were properly denied as the challenged comment was facetious, made in support of a movant in a close question and the district court ordered  retrial after the jury delivered a defense verdict on one claim, held Eisenhour inadequately briefed her evidentiary challenges, any error in not submitting claims against the county commissioners was harmless as the jury rejected similar claims against County, and held the district court properly granted judgment to Storey on Eisenhour’s claim for economic damages as it was pure speculation Storey’s sexual harassment cased county to close the Justice court leaving Eisenhour without a job. It reversed and remanded for a new trial as to punitive damages holding Storey was aware his conduct violated federal law based on his status as a judge and his training in sexual harassment prevention. Hartz added a concurrence arguing law of the case proved an alternative ground to reject Storey’s motion for judgment as a matter of law.

McCracken v Progressive Direct Insurance Company; Archuleta v USAA and USAA Casualty Insurance Company

McCracken appealed summary judgment to Progressive and Archuleta appealed judgment on the pleadings USAA on their breach of contract and related claims arising from set offs ruled unlawful in a different Colorado case. The panel affirmed in part and remanded with instructions in part. It remanded with instructions to dismiss without prejudice Archuleta’s claims against USAA Casualty as he made no allegations of wrongdoing against it. It held the other claims were properly rejected based on McCracken’s and Archuleta’s releases as the Colorado Court of Appeals held releases involving the now prohibited set offs did not violate public policy and nothing in Colorado Supreme court precedent suggests it would hold otherwise.

United States v Roach

Roach appealed his sex trafficking conviction. The panel affirmed holding roach failed to preserve his confrontation clause argument as he did not identify the three lines of cross examination he wanted to pursue in his pretrial motion or raise the confrontation clause when cross examination was limited at trial and any error under the rules of evidence in limiting cross examination was harmless given the effective challenge to the credibility of Roach’s accomplice and  testimony from the minor involved here that Roach used violence and threats to coerce her into providing sex acts for money.

Hampton v root9B Technologies, Inc. at al.

Hampton appealed the dismissal of his securities fraud claim. The panel affirmed. It held that Hampton failed to plead falsity as to the two allegedly misleading statements because removing statements that root9B used proprietary software was not prompted by a critical online article, the new language in regulatory filings  is best read to provide detail about the proprietary software and there was no inconsistency between the proprietary language and the comments in the critical article as Hampton provided no evidence the software was freely available to other companies and Hampton failed to prove falsity as to statements about thwarting aa cyberattack as the evidence presented, namely a writer suggested a more likely culprit for the attack, did not prove root9B’s attribution to a Russian entity was false. It finally held that claims against company officers and directors failed as the underlying fraud claim failed.