Below the jump is a compilation of Judge Neil Gorsuch’s jurisprudence on the U.S. Court of Appeals for the 10th Circuit in a number of key areas. The quoted case descriptions are from Westlaw, except where described as quotations from Gorsuch. We will be updating this list as we do additional research in other areas of the law.
Abortion
Planned Parenthood Ass’n of Utah v. Herbert, 839 F.3d 1301 (10th Cir. 2016) (dissented from denial of rehearing en banc)
A 10th Circuit panel had ruled for Planned Parenthood in a case that challenged Utah’s suspension of funding for the group after the disclosure of hidden-camera videos alleging that the organization’s clinics (although not in Utah) were selling fetal tissue.
Gorsuch dissented from the denial of rehearing by the full court, largely on procedural grounds.
Pino v. United States, 273 F. App’x 732 (10th Cir. 2008) (wrote opinion)
The Oklahoma Supreme Court certified (see below) that the “state’s wrongful death statute did afford a cause of action for the wrongful death of a nonviable, stillborn fetus,” so the 10th Circuit reversed the district court’s grant of summary judgment for the United States on a wrongful death claim and remanded.
Pino v. United States, 507 F.3d 1233 (10th Cir. 2007), certified question answered, 2008 OK 26, 183 P.3d 1001 (wrote opinion)
The 10th Circuit certified to the Oklahoma Supreme Court to the question of whether wrongful death action for nonviable stillborn fetus existed, under Oklahoma law, on date of delivery of fetus.
Administrative Law
Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) (wrote opinion and concurred separately)
“inadmissibility under one-year bar prevented aliens who entered country illegally more than once from obtaining adjustment of status, did not apply retroactively to bar alien’s application for adjustment of status”
Gorsuch wrote a separate concurrence expressing his doubts about the doctrine of Chevron deference, which “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate[s] federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”
De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015) (wrote opinion)
Decision of Board of Immigration Appeals inIn re Briones did not apply retroactively to bar alien’s application for adjustment of status.
Commerce Clause
Direct Mktg. Ass’n v. Brohl, 814 F.3d 1129 (10th Cir. 2016), cert. denied, (U.S. Dec. 12, 2016), and cert. denied, (U.S. Dec. 12, 2016) (concurred in decision)
“state’s notice and reporting requirements did not violate dormant Commerce Clause”
Direct Mktg. Ass’n v. Brohl, 735 F.3d 904 (10th Cir. 2013), rev’d, 135 S. Ct. 1124, 191 L. Ed. 2d 97 (2015) (joined opinion)
Tax Injunction Act “deprived the district court of jurisdiction to enjoin Colorado’s tax collection effort, we remand to the district court to dismiss DMA’s Commerce Clause claims”
Energy & Env’t Legal Inst. v. Epel, 793 F.3d 1169 (10th Cir.), cert. denied, 136 S. Ct. 595, 193 L. Ed. 2d 487 (2015) (wrote opinion)
“statute did not violate dormant Commerce Clause”
United States v. Deiter, 576 F. App’x 814 (10th Cir. 2014) (joined opinion)
Felon in possession of firearm law does not violate Commerce Clause
United States v. W., 576 F. App’x 729 (10th Cir. 2014) (joined opinion)
Sentence enhancement for sexual contact does not violate Commerce Clause
Tarrant Reg’l Water Dist. v. Herrmann, 656 F.3d 1222 (10th Cir. 2011), aff’d, 133 S. Ct. 2120, 186 L. Ed. 2d 153 (2013) (joined opinion)
“water compact insulated states’ water statutes from dormant Commerce Clause challenge insofar as challenge applied to surface water subject to that compact”
United States v. Freerksen, 457 F. App’x 769 (10th Cir. 2012) (joined opinion)
Despite challenge to child pornography sentence under Commerce Clause, sentence was substantively reasonable
United States v. Gieswein, 495 F. App’x 944 (10th Cir. 2012) (joined opinion)
“grant of COA did not preclude affirmance of district court order enforcing procedural defaults”
United States v. Hinckley, 550 F.3d 926 (10th Cir. 2008) abrogated by Reynolds v. United States, 132 S. Ct. 975, 181 L. Ed. 2d 935 (2012) (concurred in decision)
Panel holds that SORNA applies to “sex offenders who failed to register during the ‘gap period’ between SORNA’s enactment and the Interim Rule”
Gorsuch: “Hinckley’s interpretation is not without some grammatical appeal. But neither is it the only parsing of subsection (d) a reasonable reader might make. Nor are we permitted by the Supreme Court to interpret isolated statutory phrases solely according to grammatical diagrams. We must take account of Congress’s grammar to be sure, but the Court also requires us to take account of surrounding text, structure, and context.”
United States v. Rutherford, 472 F. App’x 863 (10th Cir. 2012) (wrote opinion)
“statute criminalizing conspiracy to traffic in marijuana was within Congress’ constitutional authority to regulate interstate commerce”
City of Hugo v. Nichols, 656 F.3d 1251 (10th Cir. 2011) (joined opinion)
“claim brought by Texas municipality was not redressable under dormant Commerce Clause”
United States v. Carel, 668 F.3d 1211 (10th Cir. 2011) (joined opinion)
SORNA does not violate Commerce Clause
United States v. Finney, 316 F. App’x 752 (10th Cir. 2009) (joined opinion)
“Congress did not exceed its authority under the Commerce Clause in enacting statute making it a crime for a felon to possess a firearm which has been shipped or transported in interstate commerce”
United States v. Webster, 334 F. App’x 189 (10th Cir. 2009) (joined opinion)
sex offender registry does not violate Commerce Clause
United States v. Gordon, 272 F. App’x 674 (10th Cir. 2008) (joined opinion)
felon-in-possession statute does not violate the Commerce Clause
United States v. Earle, 216 F. App’x 824 (10th Cir. 2007) (wrote opinion)
“purely intrastate production of child pornography had sufficient nexus to interstate commerce to give rise to federal jurisdiction”
WWC Holding Co. v. Sopkin, 488 F.3d 1262 (10th Cir. 2007) (dissented)
“Skeptical of my own capacity to arrive purely by judicial self-direction at the optimal understanding of a complex corner of federal communications law”
Death Penalty
The Estate of Lockett by & through Lockett v. Fallin, No. 15-6134, 2016 WL 6695780 (10th Cir. Nov. 15, 2016) (joined opinion)
Execution was not cruel and unusual and did not violate inmate’s right to due process
Cannon v. Trammell, 796 F.3d 1256 (10th Cir. 2015), cert. denied sub nom. Cannon v. Duckworth, 136 S. Ct. 2517, 195 L. Ed. 2d 848 (2016) (joined opinion)
“petitioner was not entitled to evidentiary hearing”
Eizember v. Trammell, 803 F.3d 1129 (10th Cir. 2015), cert. denied sub nom. Eizember v. Duckworth, 136 S. Ct. 2468, 195 L. Ed. 2d 807 (2016) (wrote opinion)
“State appellate court reasonably determined that excusal for cause, based on prospective juror’s views on death penalty, was not required”
Williams v. Trammell, 782 F.3d 1184 (10th Cir. 2015), cert. denied sub nom. Williams v. Warrior, 136 S. Ct. 806, 193 L. Ed. 2d 726 (2016) (concurred in opinion)
Court’s determination not unreasonable and counsel not deficient
Warner v. Gross, 776 F.3d 721 (10th Cir.), cert. granted, 135 S. Ct. 1173, 190 L. Ed. 2d 929 (2015), and aff’d sub nom. Glossip v. Gross, 135 S. Ct. 2726, 192 L. Ed. 2d 761 (2015), reh’g denied, 136 S. Ct. 20, 192 L. Ed. 2d 990 (2015) (joined opinion)
“district court did not abuse its discretion in concluding that prisoners failed to establish substantial likelihood of success on the merits of Eighth Amendment challenge”
Martinez v. Williams, 553 F. App’x 806 (10th Cir. 2014) (wrote opinion)
Defendant did not make substantial showing of the denial of a constitutional right
Grant v. Trammell, 727 F.3d 1006 (10th Cir. 2013) (wrote opinion)
“accumulation of errors did not warrant reversal of death sentence”
Glossip v. Trammell, 530 F. App’x 708 (10th Cir. 2013) (joined opinion)
Defendant not entitled to federal habeas relief and did not receive ineffective assistance of counsel
Howell v. Trammell, 728 F.3d 1202 (10th Cir. 2013) (joined opinion)
no Confrontation Clause violation
Lott v. Trammell, 705 F.3d 1167 (10th Cir. 2013) (joined opinion)
“trial court’s instruction regarding aiding and abetting did not so infect entire murder trial that the resulting conviction violated due process”
Wilson v. Trammell, 706 F.3d 1286 (10th Cir. 2013) (concurred in decision)
“prisoner was not deprived of effective assistance of counsel during penalty phase of capital murder trial”
Banks v. Workman, 692 F.3d 1133 (10th Cir. 2012) (wrote opinion)
“allowing petitioner’s brother to be questioned after invoking Fifth Amendment privilege was harmless error”
DeRosa v. Workman, 696 F.3d 1302 (10th Cir. 2012) (joined denial of rehearing en banc)
Case involves Oklahoma courts allowing testimony from victim’s relatives about death penalty.
Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012) (concurred in part, dissented in part)
Gorsuch: “I agree with much more of the court’s very fine opinion than not, and I join all but its discussion whether Mr. Hooks enjoyed a constitutional right to counsel at his post-conviction Atkinsproceeding, see Op. § II.C.5.a, and its holding that Mr. Hooks’s counsel was constitutionally ineffective at the sentencing phase of his original trial, see Maj. Op. § II.D.2.”
Flores v. Wilson, 450 F. App’x 749 (10th Cir. 2011) (joined opinion)
“state prisoner did not present rare and exceptional circumstance to justify tolling one-year limitations period governing petition”
Selsor v. Workman, 644 F.3d 984 (10th Cir. 2011) (joined opinion)
“sentencing of defendant to death following retrial did not violate prohibition against double jeopardy”
Gardner v. Garner, 383 F. App’x 722 (10th Cir. 2010) (joined opinion)
“dual role played by state attorney general’s office with respect to the clemency proceeding did not deny inmate an impartial hearing”
Lambert v. Workman, 594 F.3d 1260 (10th Cir. 2010) (joined opinion)
“habeas relief was not permitted on double jeopardy claim”
Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010) (joined opinion)
“prisoner failed to establish a substantial likelihood of prevailing on his due process challenge to State’s revised protocol”
United States v. Lujan, 603 F.3d 850 (10th Cir. 2010) (joined opinion)
“risk of juror confusion did not warrant preclusion of the prior crimes evidence”
Wackerly v. Jones, 398 F. App’x 360 (10th Cir. 2010) (joined opinion)
Lethal injection protocol not shown to create risk of severe pain to warrant stay
In re Wackerly, No. 10-7062, 2010 WL 9531121 (10th Cir. Sept. 3, 2010) (joined opinion)
Motion to file second or successive habeas petition denied
Gardner v. Galetka, 568 F.3d 862 (10th Cir. 2009) (joined opinion)
“counsel was not constitutionally ineffective during the guilt phase of murder trial”
Matthews v. Workman, 577 F.3d 1175 (10th Cir. 2009) (wrote opinion)
“juror’s misconduct did not warrant habeas relief”; “evidence was sufficient to sustain conviction” ; “trial counsel was not deficient”
Taylor v. Workman, 554 F.3d 879 (10th Cir. 2009) (joined opinion)
“state court’s decision to deny defendant a second degree murder instruction was an unreasonable application of clearly established law”
Wackerly v. Workman, 580 F.3d 1171 (10th Cir. 2009) (wrote opinion)
“defense counsel’s allegedly deficient performance during sentencing did not constitute ineffective assistance”
Wilson v. Sirmons, 549 F.3d 1267 (10th Cir. 2008), opinion after hearing en banc ordered sub nom. Wilson v. Workman, 577 F.3d 1284 (10th Cir. 2009) (dissented from en banc decision)
En banc court ruled that when Oklahoma Court of Criminal Appeals declines to grant evidentiary hearing on ineffective assistance of counsel claim, “the OCCA’s denial of the claim is not an adjudication on the merits to which the federal courts owe AEDPA deference.”
In dissent, Gorsuch wrote: “This case requires us to interpret the words of a federal statute. That statute says writs of habeas corpus “shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings” unless the state court’s decision is contrary to a Supreme Court precedent, or unless it rests on an unreasonable application of the Court’s cases or an unreasonable reading of the facts before it. 28 U.S.C. § 2254(d). This language seemingly brooks no exception. Yet, rather than applying AEDPA’s deferential standard to the claims before us, the court today finds itself applying de novo review. How can this be?”
Education
A.M. v. Holmes, 830 F.3d 1123 (10th Cir. 2016) (dissented)
Panel upheld claim of qualified immunity for police officer who handcuffed and detained 13-year-old student for disrupting class by fake-burping
Gorsuch: “If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.”
Hawker v. Sandy City Corp., 591 F. App’x 669 (10th Cir. 2014) (joined opinion)
“use of twist-lock to arrest student was objectively reasonable under Fourth Amendment”
Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775 (10th Cir. 2013) (joined opinion)
“IDEA did not impose obligation for parents to exhaust administrative procedures with regard to claims of physical abuse”
Placing mentally disabled child in timeout room did not shock the conscience
Election Law
Rocky Mountain Gun Owners v. Williams, No. 15-1336, 2016 WL 6574000 (10th Cir. Nov. 7, 2016) (joined opinion)
“The district court made a clearly erroneous factual finding that the parallel state court proceedings were still ongoing”
Riddle v. Hickenlooper, 742 F.3d 922 (10th Cir. 2014) (concurred in decision)
Panel ruled for plaintiff on equal protection claim challenging state’s imposition of lower limits on contributions to write-in, unaffiliated and minor-party candidates than on contributions to major-party candidates
In concurrence, Gorsuch wrote: “[S]ome thoughtful judges have questioned whether it is appropriate to lift what is an admittedly ‘fundamental right’ found in the First Amendment and analyze its infringement here, in the Fourteenth Amendment context, shorn of what the Court has said about the appropriate level of scrutiny applicable to that right in its native doctrinal environment,” but “Whateverlevel of scrutiny one might reasonably apply here—even spotting (without in any way granting) Colorado its wish that we lift Buckley‘s somewhat more relaxed level of scrutiny from its First Amendment home and plunk it down into this Fourteenth Amendment equal protection setting—the State’s statutory scheme still pretty clearly flunks.”
Employment Law
Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174 (10th Cir. 2011) (wrote opinion)
“Ledbetter Act did not apply to extend the 300-day administrative limitations period on employees’ ADEA claims”
Gun Laws
Pinder v. Mitchell, No. 15-4023, 2016 WL 6962082 (10th Cir. Nov. 29, 2016) (joined opinion)
“gun owners were required to avail themselves of state-level procedures to seek return of gunsbefore challenging taking of guns on procedural due process claim brought under § 1983”
Cowan v. Oklahoma, No. 16-5030, 2016 WL 4069843 (10th Cir. July 29, 2016) (joined opinion)
“The Court of Appeals held that district court lacked subject matter jurisdiction to consider merits of plaintiff’s SecondAmendment ”
United States v. Reese, 559 F. App’x 777 (10th Cir. 2014) (wrote opinion)
“overturned because someone … previously convicted of a felony may lawfully possess guns if he ‘has had civil rights restored'”
United States v. Games-Perez, 695 F.3d 1104 (10th Cir. 2012) (dissented from denial of rehearing en banc)
Gorsuch: “People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today, this court votes narrowly, 6 to 4, against revisiting this state of affairs. So Mr. Games–Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land. Of course, rehearingen banc is reserved only for questions of exceptional importance. 10th Cir. R. 35.1(A). And I fully appreciate the considered judgment of my colleagues who vote against reconsidering our circuit precedent: after all, it is both longstanding and consistent with the rulings of several other courts. Even so, I respectfully submit this extraordinary situation warrants reconsideration.”
United States v. Games-Perez, 667 F.3d 1136 (10th Cir. 2012) (concurred in decision)
“government was not required to prove that the defendant knew that he had previously been convicted of a felony”
United States v. Molina, 484 F. App’x 276 (10th Cir. 2012) (joined opinion)
“defendant’s conviction did not violate his right to bear arms under Second Amendment”
United States v. Fraser, 647 F.3d 1242 (10th Cir. 2011) (wrote opinion)
“defendant did not lack reasonable lawful alternative to taking possession of firearm, as required to establish necessity defense”
United States v. Pope, 613 F.3d 1255 (10th Cir. 2010) (wrote opinion)
Defendant’s motion to dismiss indictment could not be decided pretrial
United States v. Nolan, 342 F. App’x 368 (10th Cir. 2009) (joined opinion)
“sentence did not violate defendant’s Second Amendment right to bear arms”
Religion
Farris v. Frazier, 599 F. App’x 851 (10th Cir. 2015), cert. dismissed, 136 S. Ct. 833, 193 L. Ed. 2d 703 (2016) (wrote opinion)
Inmate with claim under the Religious Land Use and Institutionalized Persons Act did not exhaust administrative remedies
Harvey v. Segura, 646 F. App’x 650 (10th Cir. 2016) (wrote opinion)
Officers have qualified immunity, Gorsuch wrote, “because it wasn’t clearly established at the time of the incident here that a prisoner had a right to be free from a strip search by a guard of the opposite sex on the basis of religious convictions.”
Gad v. Kansas State Univ., 787 F.3d 1032 (10th Cir. 2015) (joined opinion)
“Title VII’s verification requirement was not a jurisdictional requirement”
Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 799 F.3d 1315 (10th Cir. 2015) (dissented from denial of rehearing en banc)
Panel decision wrong for not accepting plaintiff’s statements about their religious beliefs
The Supreme Court later vacated and remanded the panel’s decision.
Miller v. Scott, 592 F. App’x 747 (10th Cir. 2015) (wrote opinion)
Inmate “failed to exhaust his administrative remedies” and claim based on denial of kosher or halal meals frivolous
Ali v. Wingert, 569 F. App’x 562 (10th Cir. 2014) (wrote opinion)
“prison policy requiring inmate to include committed name alongside religious name on mail did not violate RLUIPA “
Hale v. GEO Grp., Inc., 580 F. App’x 687 (10th Cir. 2014) (joined opinion)
“appeal is frivolous”
Krumm v. Holder, 594 F. App’x 497 (10th Cir. 2014) (joined opinion)
“principles of res judicata barred pro se litigant from pursuing claims”
Merrell v. Allred, 565 F. App’x 692 (10th Cir. 2014) (joined opinion)
No exceptional circumstances warranting relief from summary judgment present
Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014) (wrote opinion)
Factual issue existed as to whether policy against sweat lodge was least restrictive means of achieving a compelling government interest
Ali v. Province, 550 F. App’x 619 (10th Cir. 2013) (wrote opinion)
Prisoner did not exhaust administrative remedies
Ciempa v. Jones, 511 F. App’x 781 (10th Cir. 2013) (joined opinion)
“no cause of action under RLUIPA for individual-capacity claims”
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), aff’d sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014) (concurred in decision)
En banc court held that petitioning companies, closely held family businesses, were likely to prevail on their claim that the Affordable Care Act’s contraceptive mandate substantially burdened their exercise of their religious beliefs
Gorsuch would have held that the business-owners as individuals were entitled to relief, stating that “it is their personal involvement in facilitating access to devices and drugs that can have the effect of destroying a fertilized human egg that their religious faith holds impermissible.” Moreover, he added, “it is not for secular courts to rewrite the religious complaint of a faithful adherent.”
Ciempa v. Jones, 477 F. App’x 508 (10th Cir. 2012) (joined opinion)
“racist beliefs of prisoner’s religion were relevant to the injury and public interest factors for determining whether to issue preliminary injunction”
Kaiser v. Colorado Dep’t of Corr., 504 F. App’x 739 (10th Cir. 2012) (wrote opinion)
“no evidence that appointing authority did not have good faith belief that conduct by trainee was unsatisfactory”
Williams v. Sibbett, 442 F. App’x 385 (10th Cir. 2011) (joined opinion)
“prisoner waived appellate review of claim under Religious Land Use and Institutionalized Persons Act”
Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) (concurred in decision)
Panel remanded for district court to determine whether burden on inmate’s religion from denial of halal meals was justified
Gorsuch: “This case compels us to address only whether prison officials can violate RLUIPA by denying an inmate in their charge all means of accessing food he can eat consistent with his (uncontested) sincerely held religious beliefs — thus effectively forcing him to choose between remaining pious or starving. We hold that RLUIPA does indeed apply in these circumstances. Whether and to what extent the statute goes further is a question for another day.”
Am. Atheists, Inc. v. Davenport, 637 F.3d 1095 (10th Cir. 2010) (dissented from denial of rehearing en banc)
Panel had held that erection of memorial crosses on highway violated the establishment clause
Gorsuch: “Our court has now repeatedly misapplied the ‘reasonable observer’ test, and it is apparently destined to continue doing so until we are told to stop”; the “court’s holding does and must rest on the view that anything a putatively ‘reasonable observer’ could think ‘endorses’ religion is constitutionally problematic.”
Boles v. Dansdill, 361 F. App’x 15 (10th Cir. 2010) (joined opinion)
Various policies did not affect exercise of religion
United States v. Quaintance, 608 F.3d 717 (10th Cir. 2010) (wrote opinion)
“defendants were not sincere with respect to their purported religious beliefs that marijuana was a deity and sacrament”
Queen v. McIntire, 290 F. App’x 162 (10th Cir. 2008) (wrote opinion)
Inmate did not exhaust administrative remedies
Zapata v. Brandenburg, 291 F. App’x 150 (10th Cir. 2008) (wrote opinion)
“alleged confinement to room for periods of time and ultimate removal from faith-based program for refusing to convert to different religious faith did not violate prisoner’s right to free exercise of religion”
Summum v. Pleasant Grove City, 499 F.3d 1170 (10th Cir. 2007) (joined dissent from denial of rehearing en banc)
Cases involved discretion of city park managers to allow installation of privately-funded Ten Commandments monuments; dissent argued that “any messages conveyed by the monuments they have chosen to display are ‘government speech,’ and there is no ‘public forum’ for uninhibited private expression.
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