Tied Up in the Tenth Circuit
posted by Amanda Frost
I have been litigating a case in the Tenth Circuit that produced an unusual result. I lost before the panel, but a strong dissent from Judge Ebel convinced the Tenth Circuit to rehear the case en banc. Twelve judges sat on the case. On May 17, 2006, just a week after the en banc argument, I received the Court’s per curiam opinion announcing that it was evenly divided, 6-6. The Court thus affirmed the district court and vacated the panel opinion without issuing any law for the circuit. This frustrating result has created a mini-debate among those I have consulted about filing a cert. petition in the Supreme Court. Some of the experienced Supreme Court practitioners with whom I have discussed the case are convinced that the 6-6 split increases the likelihood that the Supreme Court will grant cert., while others believe that the lack of any precedent on this issue in the Tenth Circuit detracts from its cert-worthiness. I would be very interested to hear from anyone with an opinion on the matter whether they think the Tenth Circuit’s tie vote makes this case a better, or worse, candidate for Supreme Court review. (Obviously, getting the Court to grant review is always a long shot; I’m just interested to know how people think this odd result from the en banc court will affect my chances).
For those who are interested, here is a little background information on the case: My client, Cornelius Peoples, filed suit in the Kansas District Court against prison guards employed by Corrections Corporation of America (CCA). Mr. Peoples, a federal prisoner, alleges that guards at CCA’s Leavenworth, Kansas, facility failed to protect him from attacks by other prisoners even after he repeatedly requested that he be removed from his cell block for his own safety. Claiming a violation of his Eighth Amendment rights, he brought suit under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. Although it’s clear that Mr. Peoples could have brought a Bivens action if he were incarcerated in a government-run prison, the circuits are divided on the question whether prisoners can sue private prison guards for constitutional violations. It has been an interesting case to litigate, but I am sorry that I have not been able to get a better result for my client.
August 1, 2006 at 10:01 am
Posted in: Constitutional Law, Law Practice, Supreme Court
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Responses (12)
Scott Moss - August 1, 2006 at 10:31 am
You mention a lack of other Tenth Circuit precedent; is there much precedent in the other circuits? I’d think the Supes would care more about whether many circuits are split than about whether the 10th’s case law is incomplete.
Scott Moss - August 1, 2006 at 10:37 am
This is very tangential, but it’s an old tirade of mine: shouldn’t Montana, Idaho, Arizona, and Alaska (and maybe Nevada) clearly be in the 10th Circuit, not the 9th? Two reasons:
(1) The 9th has a far, far heavier docket than the 10th.
(2) Those states have much more in common, culturally and to some extent in legal issues that arise (e.g., grazing and mining), with the big rural states of the 10th than with the rest of the 9th (CA, OR, WA, and HI). I mean, there are several “pairs” of adjacent states (Idaho and Montana; New Mexico and Arizona) that easily could be in the same circuit — rather than split up, with one placed in the overcrowded 9th.
Scott Moss - August 1, 2006 at 10:37 am
This is very tangential, but it’s an old tirade of mine: shouldn’t Montana, Idaho, Arizona, and Alaska (and maybe Nevada) clearly be in the 10th Circuit, not the 9th? Two reasons:
(1) The 9th has a far, far heavier docket than the 10th.
(2) Those states have much more in common, culturally and to some extent in legal issues that arise (e.g., grazing and mining), with the big rural states of the 10th than with the rest of the 9th (CA, OR, WA, and HI). I mean, there are several “pairs” of adjacent states (Wyoming and Montana; New Mexico and Arizona) that easily could be in the same circuit — rather than split up, with one placed in the overcrowded 9th.
Scott Moss - August 1, 2006 at 10:38 am
sorry for the double-post (I made a last-minute minor correction), especially on my silly tangential issue!
Andy Hessick - August 1, 2006 at 11:18 am
Sounds like a frustrating case. As far as your question about cert. — this is off the top of my head — it seems to me that the 6-6 split is a reason against the court granting cert. The Supreme Court ordinarily grants cert. to resolve splits in the circuits (or among state supreme courts), though it occasionally (very occasionally if you are not the US) grants cert. to correct decisions that flagrantly conflict with Supreme Court precedent.
A threshold question, then, is whether the issue in your case presents a circuit split. If it does not, then the chances of your getting cert. granted are probably negligible regardless of the posture of your case.
Even if there is a split, though, the posture of your case reduces your chance for getting cert. granted. That is because the tenth circuit’s decision does not really conflict with any other decisions. First, because the court didn’t issue an opinion, we can’t be sure of their ground of decision. Second, the tenth circuit’s decision is not precedential because it was an affirmance by an evenly divided court; later panels of the tenth circuit therefore are free to rule any way they want on the issue. So the tenth circuit’s law does not conflict with the law of any other circuit.
Another reason why the posture of your case hurts your chances for cert. is that the tenth circuit did not pass on the legal issues you will raise in your cert. petition. The court may be inclined not to grant review in such circumstances because the legal issue has not been well developed.
Matthew L.M. Fletcher - August 1, 2006 at 11:45 am
I’ve seen a case where the 10th Circuit split 6-6 en banc and the Court didn’t grant cert until a later case. The case is United States v. Weaselhead. There was a 9th Circuit case called United States v. Enos that came out with the same outcome as Weaselhead. Later, the Court granted cert in United States v. Lara, 541 U.S. 193 (2004), an 8th Circuit case, which conflicted with Lara, creating the split. So the 6-6 tie might not be sufficient.
By the way, the cases were about the constitutionality of the so-called “Duro Fix,” an 1990 amendment to the Indian Civil Rights Act that affirmed tribal criminal jurisdiction over nonmember Indians. Congress had attempted (successfully, it turns out) to overrule Duro v. Reina, 495 U.S. 676 (1990).
Orin Kerr - August 1, 2006 at 12:38 pm
This is a hard question, Amanda, and I think the answer depends on the nature and the depth of the preexisting split (which I gather from your post exists without the 10th circuit’s involvement). If the split before was minor, or the issue doesn’t come up that often, then I think the 6-6 divide helps you; it says to the Court, “this is super hard, and you all need to settle it.” On the other hand, if the split before was pretty deep and even, or the issue recurs all the time, then the weirdness of the panel decision having been vacated makes the case a somewhaat less likely vehicle to decide the question. Finally, if the 10th circuit’s opinion was needed to create the split in the 1st place, then the 6-6 tie vacating the panel opinion hurts you.
Scott Moss - August 1, 2006 at 4:11 pm
Relatedly, the deep multiple-opinion split in the 7th Circuit in Burlington Industries v Ellerth (re employers’ vicarious liability in sex harassment cases) probably was a factor leading the Sup Ct to grant cert and resolve the issue….
Amanda Frost - August 1, 2006 at 5:57 pm
Thanks for all your thoughts, comments, and sympathy. I am very likely to file the cert. petition, so I guess we will see whether the 6-6 split manages to catch the Court’s interest.
TK - August 3, 2006 at 5:09 pm
I’m not so sure I would characterize the circuits as being “divided on the question whether prisoners can sue private prison guards for constitutional violations.” I think the en banc decision has the effect of reinstating the district court’s opinion, which holds you can’t bring a Bivens suit in that situation. The 4th Circuit has since held the same, and no other circuit has addressed the issue. There are a handful of district court opinions from outside the 10th, but to me this issue hasn’t quite divided the circuits in the way that would make the question especially likely to be decided by the Supreme Court in the near future—although I suspect more and more of these cases will eventually hit the courts of appeals! Just my 2 cents.
Amanda Frost - August 3, 2006 at 6:07 pm
TK, check out Vector Research Inc. v. Howard & Howard Attorneys, 76 F.3d 692 (6th Cir. 1996), and Showengerdt v. General Dynamics Corp., 823 F.2d 1328 (9th Cir. 1987). Both cases hold that a Bivens action can be brought against an employee of a private corporation who exercises federal governmental authority.
Jacqueline Crow - September 14, 2006 at 11:50 pm
I just want to thank you for working so hard on this case. Cornelius Peoples is my first cousin. We have been very close growing up and had maintained contact for years throughout his incarceration, up to a few years ago. I hope everything works out in his favor as well as yours.
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