McKAY , Circuit Judge . Plaintiff David Hansen filed this suit against his former employer, Defendant SkyWest Airlines, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2000e-17, for sex-based hostile work environment, disparate treatment, quid pro quo harassment, coworker harassment, retaliation, and for intentional infliction of emotional distress under state law. The district court granted summary judgment for SkyWest with respect to all of his claims. Exercising...
BRISCOE , Circuit Judge . Plaintiffs, a group of entities and individuals that own businesses or real property located on Central Avenue in Albuquerque, New Mexico, filed this action seeking to enjoin the City of Albuquerque (the City) from proceeding with construction of a rapid transit bus system along Central Avenue. Plaintiffs claim, in pertinent part, that the City and the Federal Transit Administration, from whom the City seeks federal funding for the project, violated the National...
HARTZ , Circuit Judge . A New Mexico statute and a resolution adopted by the Otero County Board of County Commissioners purported to authorize the Board to mitigate fire danger in the Lincoln National Forest without first obtaining permission from the U.S. Forest Service. The United States obtained a judgment from the United States District Court for the District of New Mexico invalidating the statute and the resolution. The Board appeals. Exercising jurisdiction under 28 U.S.C. 1291, we...
HARTZ , Circuit Judge . Expert South Tulsa (Debtor), a debtor in bankruptcy, seeks to set aside as a fraudulent transfer its own sale of real estate that was encumbered by a mortgage far exceeding the sale price. It contends that it did not receive reasonably equivalent value in exchange for the property. Perhaps it now thinks it can sell the property at a much higher price. Or it may be trying to assist a related party that acquired the mortgage note after the sale. Regardless of its...
EBEL , Circuit Judge . Petitioner Zen Magnets, LLC ("Zen") challenges a regulation promulgated by Respondent Consumer Product Safety Commission ("the Commission") restricting the size and strength of the rare earth magnets that Zen sells. See Final Rule: Safety Standard for Magnet Sets, 79 Fed. Reg. 59,962 (Oct. 3, 2014) (codified at 16 C.F.R. 1240.1-1240.5). We conclude that the Commission's prerequisite factual findings, which are compulsory under the Consumer Product Safety Act, 15...
MATHESON , Circuit Judge . Anna Gutierrez and her mother, Patsy Flores, ("Plaintiffs") appeal the district court's grant of summary judgment based on qualified immunity to Luna County New Mexico Sheriff's Deputy Gabriel Maynes on three of their claims brought under 42 U.S.C. 1983: (1) excessive use of force, (2) unlawful entry, and (3) unlawful seizure. When Deputy Maynes asserted the qualified immunity defense, Plaintiffs needed to show (1) a violation of (2) clearly established federal...
EBEL , Circuit Judge . The Ten Commandments are a symbol of both religious and secular significance. McCreary Cty. v. ACLU of Ky. , 545 U.S. 844 , 869, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) ("[T]he original text viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction."); Van Orden v. Perry , 545 U.S. 677 , 701, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Breyer, J., concurring in the judgment) (noting...
McKAY , Circuit Judge . Plaintiffs appeal the district court's denial of their request for a preliminary injunction to prevent the drilling of certain oil and gas wells in the Mancos Shale formation of the San Juan Basin in New Mexico. The district court concluded that Plaintiffs had failed to satisfy three of the four elements required to obtain a preliminary injunction: (1) Plaintiffs had not demonstrated a substantial likelihood of success on the merits of their claims; (2) the balance...
BRISCOE , Circuit Judge . Petitioners American Wild Horse Preservation Campaign, The Cloud Foundation, Return to Freedom, Carol Walker, and Kimerlee Curyl filed this action against Sally Jewell, the Secretary of the Department of the Interior, and Neil Kornze, the acting director of the Bureau of Land Management (BLM), seeking review of BLM's decision to remove wild horses in certain areas of public land located in southwestern Wyoming within an area known as the "Checkerboard." Petitioners...
HOLMES , Circuit Judge . INTRODUCTION In this case, we must resolve whether section 5 of the National Voter Registration Act (the "NVRA"), 52 U.S.C. 20504, preempts a Kansas law requiring documentary proof of citizenship ("DPOC") for voter registration, Kan. Stat. Ann. 25-2309( l ), as applied to the federally mandated voter-registration form that must be a part of any application to obtain or renew a driver's license (the "motor voter" process). 1 Section 5 of the NVRA mandates that...
BRISCOE , Circuit Judge . Phillips 66 Company ("the Company") appeals from the district court's grant of summary judgment and order compelling arbitration. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union and its Local 13-857 (collectively, "the Union") filed two grievances on behalf of employees of the Company and sought arbitration pursuant to the grievance procedure in the parties' collective bargaining...
BRISCOE , Circuit Judge . Petitioner State of Wyoming (the State) filed this action against the United States Department of the Interior, the Secretary of the Department, and the acting director of the Bureau of Land Management (BLM) seeking judicial review of what the State claimed was their failure to comply with non-discretionary obligations imposed upon them by the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. 1331-1340 (1982). More specifically, the State alleged that...
HARTZ , Circuit Judge . Andrew Alwert and Stanley Feldman (Plaintiffs) brought putative class actions against Cox Communications, Inc. (Cox) claiming that it violated antitrust law by tying its premium cable service to rental of a set-top box. The district court granted Cox's motions to compel arbitration. It then certified the orders compelling arbitration for interlocutory appeal under 28 U.S.C. 1292(b), and we granted Plaintiffs permission to appeal. They argue that the arbitration...
LUCERO , Circuit Judge . This case asks us to determine whether, under the totality of circumstances, Kansas Highway Patrol Officers Richard Jimerson and Dax Lewis (the "Officers") had reasonable suspicion to detain and search the vehicle of Peter Vasquez. In particular, this case presents the question of what weight to afford the state citizenship of a motorist in determining the validity of a search. Vasquez alleges that after stopping him for a traffic violation, the Officers detained...
MORITZ , Circuit Judge . Richard George, Steven Leavitt, Sandra Leavitt, and Darrell Dalton appeal the district court's dismissal of their putative class action against Urban Settlement Services, d/b/a Urban Lending Solutions (Urban) and Bank of America, N.A. (BOA). The plaintiffs asserted a claim under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961-1968, against BOA and Urban. They also brought a promissory estoppel claim against BOA. Both claims arose...
ORDER This matter is before the court on the appellees' Petition for Panel Rehearing or Rehearing En Banc. We also have a response from the appellant. Upon consideration, the request for panel rehearing is granted in part and to the extent of the changes made in the attached amended decision. The request for panel rehearing is otherwise denied. Both the appellees' petition and the amended panel decision were also circulated to all the active judges of the court. A poll was called and a...
EBEL , Circuit Judge . Defendant-Appellant Ernest Marquez challenges the two-level sentence enhancement imposed under United States Sentencing Guideline 3B1.1(c) for his role as an organizer, leader, manager, or supervisor in criminal activity. We affirm. I. BACKGROUND A jury convicted Marquez of three drug charges, including, as relevant to this appeal, possession with intent to distribute fifty grams or more of methamphetamine ("meth") in violation of 21 U.S.C. 841(a)(1), (b)(1)(B)....
TYMKOVICH , Chief Judge . Miguel Bustamante-Conchas was convicted on drug distribution charges and sentenced to 240 months in prison. At sentencing the district court found that Bustamante-Conchas was responsible for a significant amount of drugs and for a firearm in the possession of a co-conspirator, and then after a lengthy hearing sentenced him before he could speak on his behalf to the court. He challenges on appeal the district court's factual findings at sentencing, as well as the...
GORSUCH , Circuit Judge , delivered the opinion of the Court, in which PHILLIPS, J., joined. HARTZ, J., joined Parts I, II, III(A), and IV. Walter Ackerman's email never made it to its intended recipient. It didn't because AOL, Mr. Ackerman's internet service provider (ISP), has an automated filter designed to thwart the transmission of child pornography. After that filter identified one of four images attached to Mr. Ackerman's email as child pornography, AOL instantly stopped delivery and...
PHILLIPS , Circuit Judge . Eugene Foster appeals from a district-court order granting summary judgment in favor of Mountain Coal Company, LLC (Mountain Coal) on his retaliation claims under the Americans with Disabilities Act (ADA), 42 U.S.C. 12203(a). Specifically, Foster appeals the district court's dispositive conclusion that his requests for accommodation were inadequate and untimely. Exercising jurisdiction under 28 U.S.C. 1291, we reverse and remand to the district court for...
