Latest 4 Cases: SE Property Holdings v. Stewart (Bankruptcy), Hickey v. Brennan (Civil Procedure), United States v. Muskett (Constitutional Law)

#MeToo and What Men and Women Are Willing to Say and Do

SHERRY F. COLB

Cornell Law professor Sherry F. Colb explores why people have such strong feelings about the #MeToo movement (whether they are advocates or opponents) and suggests that both sides rest their positions on contested empirical assumptions about the behavior of men and women. Colb argues that what we believe to be true of men and women generally contributes to our conclusions about the #MeToo movement and our perceptions about how best to handle the accusations of those who come forward.

Read More

SE Property Holdings v. Stewart

Docket: 19-6103

Opinion Date: August 14, 2020

Judge: Harris L. Hartz

Areas of Law: Bankruptcy, Legal Ethics

Attorney Ruston Welch received approximately $350,000 in fees for representing David and Terry Stewart in their Chapter 7 bankruptcy proceedings. This appeal stemmed from Welch's failure to disclose his fee arrangements and payments until ordered to do so by the bankruptcy court more than two years after he should have disclosed his fee agreement, and more than a year after he should have disclosed the payments. For these violations the bankruptcy court sanctioned Welch, requiring him to pay $25,000 to the bankruptcy estate. The bankruptcy appellate panel (BAP) affirmed the sanction after the Stewarts’ largest creditor, SE Property Holdings (SEPH), which had initiated the proceedings as an involuntary bankruptcy, challenged the sanction as so inadequate as to constitute an abuse of discretion. SEPH appealed that decision. The Tenth Circuit concurred, reversed and remanded the matter for further consideration. "The presumptive sanction ... is forfeiture of the entire fee. For good reason the bankruptcy court can impose a lesser sanction. But the court thus far has not provided good reason. It assumed facts that were not in evidence and, most importantly, apparently assumed good faith without examining the possible motives for nondisclosure."

Hickey v. Brennan

Docket: 19-1317

Opinion Date: August 14, 2020

Judge: Ebel

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law

Plaintiff Lynda Hickey, a former employee of the United States Postal Service (“USPS”), filed a discrimination complaint against Defendant Megan Brennan, the Postmaster General of the USPS, in her official capacity. Defendant moved for summary judgment on the basis that Hickey had not properly exhausted her administrative remedies because she did not contact an Equal Employment Office (“EEO”) counselor within forty-five days after her employment was terminated. The magistrate judge, exercising full jurisdiction with the consent of both parties, granted Defendant’s motion for summary judgment. Finding that Hickey indeed, failed to initiate contact with an EEO counselor within forty-five days after the effective date of her termination as required by 29 C.F.R. 1614.105(a), the Tenth Circuit affirmed. Furthermore, the Court found Hickey did not show either that Defendant should have been equitably estopped from raising her lack of timeliness as an affirmative defense or that she was entitled to an extension of time for initiating contact with the EEO.

United States v. Muskett

Docket: 17-2123

Opinion Date: August 14, 2020

Judge: Carolyn Baldwin McHugh

Areas of Law: Constitutional Law, Criminal Law, Native American Law

In 2013, defendant-appellant Donovan Muskett was indicted by grand jury, charged with four counts: assault with a dangerous weapon in Indian Country; aggravated burglary in Indian Country (based on New Mexico’s aggravated burglary statute by way of the federal Assimilative Crimes Act); using, carrying, possessing, and brandishing a firearm during and in relation to and in furtherance of a crime of violence; and negligent child abuse in Indian Country. Muskett entered into a plea agreement, under which he pled guilty to the brandishing a firearm charge, the government dismissed the remaining three counts. The parties agreed that, contingent on the district court's acceptance of the plea agreement, Muskett would be sentenced to 84 months in prison. The district court accepted Muskett’s plea and sentenced him to 84 months of imprisonment followed by a three-year term of supervised release. In this matter, Muskett appealed the denial of his motion to vacate the brandishing conviction as a crime of violence based on the Supreme Court's decision in United States v. Davis, 139 S. Ct. 2319 (2019) (invalidating the residual clause in 18 U.S.C. 924(c)’s definition of a “crime of violence” as unconstitutionally vague). The parties’ primary disputed whether Muskett’s predicate federal felony—assault with a dangerous weapon, 18 U.S.C. 113(a)(3)—qualified as a crime of violence under the elements clause, thereby rendering harmless the Davis defect in his conviction. Muskett suggested the Tenth Circuit conduct this analysis using the law as it existed at the time of his conviction because application of current law would violate due process limits on the retroactive application of judicial decisions enlarging criminal liability. The Tenth Circuit found precedent compelled the conclusion that assault with a dangerous weapon was categorically a crime of violence under the elements clause. "And we conclude that at the time of his offense, Mr. Muskett had fair notice that section 924(c)’s elements clause could ultimately be construed to encompass his commission of assault with a dangerous weapon." The Court thus affirmed the district court's denial of Muskett’s section 2255 motion.

Castanon v. Cathey

Docket: 19-6141

Opinion Date: August 14, 2020

Judge: Robert Edwin Bacharach

Areas of Law: Gaming Law

Plaintiffs owned two horses registered to race, but state racing officials determined that the horses were ineligible. The owners sued, alleging denial of due process in disqualifying one of the horses. The district court dismissed the claim based on the absence of a property or liberty interest. The owners asked the district court to alter or amend the judgment. The district court denied this request, and the owners appealed. Finding that the district court acted within its discretion in rejecting these arguments as a basis to alter or amend the judgment, as procedurally and substantively invalid, the Tenth Circuit affirmed the denial of the motion to alter or amend and dismissal of the suit.