Tenth Circuit Scorecard, October Term 2013

The Supreme Court’s October 2013 Term concluded yesterday, so now it’s time to take a look at how our beloved Tenth Circuit fared.

The answer is “pretty well.” The Supreme Court reviewed four cases from the Tenth Circuit, affirming two and reversing two, for a 50% success rate. Also, Judge Timothy Tymkovich has a right to feel good today — he wrote the opinions in both cases that the Supremes affirmed.

For a look at how other the other circuits made out, take a look at the Circuit Scorecard in SCOTUSblog’s Stat Pack for this term. Let’s just say the First, Third, and Eighth Circuits are feeling the pain today, with 100% reversal rates. Perennial contenders, the Ninth and Sixth Circuits, clocked in with 91% and 82% reversal rates, respectively. The winner was the Seventh Circuit, which was affirmed 75% of the time.

And now let’s take a look at the Tenth Circuit cases that the Supreme Court reviewed, in alphabetical order:

1. Burwell v. Hobby Lobby Stores, Inc. (formerly known as Sebelius v. Hobby Lobby Stores, Inc.). In perhaps the most controversial case of the Term, the Supreme Court, in an opinion by Justice Alito, affirmed the Tenth Circuit’s decision holding that private, for-profit corporations can invoke the Religious Freedom Restoration Act, and that the Obama Administration’s contraceptive mandate violates the Act.

The Tenth Circuit considered the case en banc, with Judge Tymkovich writing the main opinion for the Court. Judges Harris Hartz (of New Mexico), Neil Gorsuch, and Robert Bacharach wrote concurring opinions. Chief Judge Mary Beck Briscoe and Judge Scott Matheson wrote opinions concurring in part and dissenting in part.

Last year I wrote about the case here and here, explaining why the contraceptive mandate does not satisfy RFRA. There has also been a lot of heated commentary about yesterday’s decision, but you can find a good, plain-English explanation from Prof. Eugene Volokh of UCLA Law School.

2. Loughrin v. United States. The Supreme Court, in an opinion by Justice Kagan, affirmed the Tenth Circuit and held that the government does not have to prove that the defendant intended to defraud a financial institution in order to obtain a conviction under 18 U.S.C. section 1344(2). The Tenth Circuit’s decision was written by Judge Tymkovich.

3. Marvin M. Brandt Revocable Trust v. United States. In an opinion by Chief Justice Roberts, the Supreme Court reversed the Tenth Circuit, and held that where a railroad had an easement over petitioner’s land under the General Right-of-Way Act of 1875, but later abandoned it, the easement was completely terminated. The Supreme Court rejected the federal government’s claim that it still had a right to the easement. The Tenth Circuit’s non-precedential decision in this case appears to have been written by Judge Paul Kelly of New Mexico.

4. Rosemond v. United States. In an opinion by Justice Kagan, the Supreme Court reversed the Tenth Circuit, holding that there was an error in jury instructions at the defendant’s trial on charges of aiding and abetting a violation of 18 U.S.C. section 924(c), which criminalizes using or carrying a gun in connection with a drug trafficking crime. The Tenth Circuit’s opinion in the case was written by Judge David Ebel.

Please note that although this case arose in the District of Utah, prominent Albuquerque criminal defense lawyer Robert Gorence, who has been called “a New Mexico combination of Johnny Cochran and F. Lee Bailey,” represented the defendant in the Tenth Circuit and was on the briefs at the Supreme Court. So if you see Mr. Gorence, be sure to congratulate him on this win!


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