F I L E D
                                                     United States Court of Appeals
                                                             Tenth Circuit
             UNITED STATES COURT OF APPEALS August 7, 2007

                             TENTH CIRCUIT              Elisabeth A. Shumaker
                                                            Clerk of Court



ESTATE OF KEN NETH M ICH AEL
TR EN TA D U E; C AR ME N A G UILAR
TRENTAD UE; W ILM A LO U TRENTA DU E;
ESTATE OF JESSE JAM ES TRENTADU E;
DO NN A TRENTA DU E SWEENEY ; LEE
FREDERICK TREN TA DUE; and JESSE
CA RL TREN TAD UE,

     Plaintiffs-Appellees,

v.

U N ITED STA TES O F A M ER ICA;
D EPA RTM EN T O F JU STIC E; FEDERAL
B UREA U O F PR ISO N S; and FEDERAL
B UREA U O F IN V ESTIG A TIO N,
                                                   Nos. 05-6406
     Defendants-Appellants.                         & 06-6011
_____________________________________        (D.C. No. CIV 97-849-L)
                                                 (W . Dist. Okla.)
ESTATE OF KEN NETH M ICH AEL
TRENTAD UE,

     Plaintiff,

CARM EN AGUILAR TRENTADUE; W ILM A
LO U TREN TA DUE; ESTA TE O F JESSE
JA M ES TR EN TA D U E; D O N N A
TRENTADUE SW EENEY; LEE FREDERICK
TRENTADUE; and JESSE CARL
TRENTAD UE,

     Plaintiffs - Cross-Appellants,

v.
 U N ITED STA TES O F A M ER ICA;
 D EPA RTM EN T O F JU STIC E; FEDERAL
 B UREA U O F PR ISO N S; and FEDERAL
 B UREA U O F IN V ESTIG A TIO N,

          Defendants - Cross-Appellees.




                         ORDER AND JUDGMENT *


Before HA RTZ, SE YM OU R, and O’BRIEN, Circuit Judges.


      The United States appeals the district court’s decision on remand finding

that family members (the Family) of Kenneth Trentadue suffered severe

emotional distress and reinstating an award of $1.1 million in damages under the

Federal Tort Claims Act (FTCA) for intentional infliction of emotional distress.

The Family cross-appeals the district court’s denial of their request to move for

dismissal of a collateral claim without prejudice. W e remand to the district court

for further findings as to the fourth prong of the test for intentional infliction of

emotional distress, and we affirm the district court’s denial of the Family’s

M otion for Dismissal W ithout Prejudice of Jesse C. Trentadue’s Severed Claim of

Emotional Distress Based Upon the United States’ Efforts to Indict Him.

      This litigation originates as a result of the unfortunate death of Kenneth

      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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Trentadue while in federal custody in Oklahoma. The parties and the district

court are fully aware of the factual predicate of this case, see Estate of Trentadue

ex rel. Aguilar v. United States, 

(10th Cir. 2005) (Trentadue I). In

short, relatives of M r. Trentadue brought a claim for intentional infliction of

emotional distress under the FTCA. The district court evaluated the claim

pursuant to Oklahoma state tort law. To prove intentional infliction of emotional

distress in Oklahoma, the plaintiff must demonstrate that “(1) the defendant acted

intentionally or recklessly; (2) the defendant’s conduct was extreme and

outrageous; (3) the defendant’s conduct caused the plaintiff emotional distress;

and (4) the emotional distress was severe.” 

The district court

found M r. Trentadue’s wife, mother, father, sister, and brothers satisfied all four

requirements and aw arded damages to each family member. 1

      The government appealed to this court, contending the Family failed to

satisfy any of the elements of intentional infliction of emotional distress. W e

concluded the family members “proved the first, second, and third elements of the

tort of emotional distress, intentional or reckless conduct, outrageousness, and

causation.” 

“H owever, because the district court did not make explicit

findings as to the severity of each individual plaintiff’s emotional distress,” we

were unable to determine whether the fourth element w as met. 

      1
        The district court awarded Mr. Trentadue’s wife $250,000, his mother,
sister, and two brothers $200,000 each, and his father’s estate $50,000.

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Accordingly, we “vacate[d] the FTCA judgment in favor of the plaintiffs and

remand[ed] for additional findings on whether the emotional distress suffered by

each plaintiff was severe under Oklahoma law.” 

the district court summarily found the fourth prong had been

met and reinstated the damage awards. Specifically, the court concluded

      [u]nder Oklahoma law . . . the emotional distress suffered by each
      plaintiff was severe. Based upon the evidence presented at trial,
      including the testimony of the plaintiffs, the court finds that each
      plaintiff satisfied the fourth element of the tort of intentional
      infliction of emotional distress which requires proof that the
      plaintiff’s emotional distress was so severe that no reasonable person
      could be expected to endure it. In making this finding, the court has
      also considered the intensity and duration of the distress suffered by
      plaintiffs . . . [and] the extreme and outrageous character of the
      defendant’s conduct [as] important evidence that the distress existed.

App., Vol. III at 754-55. The government appeals this remand order, asserting the

district court failed to follow our mandate to make “explicit findings as to the

severity of each individual plaintiff’s emotional distress.” Trentadue 

. Further, they assert that, as a matter of law , the family members

cannot m eet the severity element of intentional infliction under Oklahoma law.

      Our “mandate consists of our instructions to the district court at the

conclusion of the opinion, and the entire opinion that preceded those

instructions.” Proctor & Gamble Co., v. Haugen, 

, 1126 (10th Cir.

2003). In reviewing the district court’s application of our mandate, “we consider

whether the court abused the limited discretion that our mandate left to it.” 

1125. “To decide w hether the district court violated the mandate, it is necessary

to examine the mandate and then look at what the district court did.” Hicks v.

Gates Rubber Co., 

, 969 (10th Cir. 1991).

      In Trentadue I, we clearly mandated the district court to provide greater

evidentiary support for its conclusion that each individual plaintiff’s distress was

severe under Oklahoma law . W e sought an expanded discussion of the severity

prong because we were “unable to determine from the district court’s [first] order

whether the fourth element of the tort ha[d] been met.” Trentadue 

. This mandate was intended to elicit an individualized severity analysis for

the differently situated plaintiffs. See 

(“[B]ecause the district court

did not make explicit findings as to the severity of each individual plaintiff’s

emotional distress, we are unable to determine whether the fourth element of the

tort has been met.” (emphasis added)); 

(“remand[ing] for additional

findings on whether the emotional distress suffered by each plaintiff was severe

under O klahoma law ” (emphasis added)); 

(remanding “to the district

court for supplemental findings on whether, under O klahoma law, each plaintiff

suffered severe emotional distress.” (emphasis added)). W e sought this additional

analysis because family members experienced the death and its aftermath from

different vantage points. For example, the decedent’s wife, mother, and sister

personally witnessed the unveiling of the unexpectedly bruised and lacerated body

of M r. Trentadue at the California funeral home, while other family members

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were orally informed of the body’s condition. See Trentadue 

.

It has always been the government’s position that this is a distinction with a

difference. Although all plaintiffs may have suffered “severe” distress in light of

the government’s actions, the family members were subjected to different stresses

and the severity of each plaintiff’s distress therefore requires individualized

evaluation. 2

       On remand, the district court failed to make specific findings regarding the

severity of the emotional distress each family member suffered, and we are thus

in no better position to “determine from the district court’s order whether the

fourth element of the tort has been met,” than we were upon our first review. 

W e are still unable to evaluate adequately whether each family member

has satisfied the fourth prong. See United States v. Wagoner County Real Estate,

, 1102 (10th Cir. 2002) (remanding for more specific findings).

For example, on remand, the district court stated in evaluating the fourth prong

that it considered “testimony of the plaintiffs,” app., vol. III at 754, and the

intensity and duration of the distress under the proper legal standard–proof that

each plaintiff’s emotional distress was so severe no reasonable person could be

expected to endure it. In doing so, however, the court did not identify these



       2
         The district court awarded individual compensation ranging from $50,000 to
$250,000. The nonuniform financial awards suggest the district court may have already
determined plaintiffs suffered harms of differing severity. See Trentadue 

n.2.

                                          -6-
witnesses, the persuasive content of their testimony, or the characteristics of the

distress that led it to conclude the fourth prong was met. W e therefore remand for

the court to make additional findings specific to each individual plaintiff to

support its conclusion that their emotional distress was severe under Oklahoma

law. Further specificity as to the nature and severity of the harm suffered by each

individual plaintiff will satisfy both our original remand and this present mandate

for additional findings.

      W ith respect to the cross-appeal, the Family on remand sought leave to

dismiss without prejudice Jesse Trentadue’s collateral intentional infliction of

emotional distress claim. The district court denied this request and the Family

cross-appeals.

      In its amended complaint, the Family alleged that government officials

intentionally inflicted emotional distress on Jesse Trentadue by “knowingly

attempt[ing] to indict Jesse C. Trentadue for obstruction of justice and fraud in an

effort to silence him . . .” and to deter his investigation into his brother’s death.

App., vol. I at 255. At trial, the district court held that this issue “would be

totally collateral to this litigation,” and although it “certainly might be the subject

of litigation by M r. Jesse Trentadue against the government in some way, [it is]

not really part of this lawsuit.” App., vol. X at 3615. In Trentadue 

, we addressed the district court’s decision not to consider this intentional

infliction claim,

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      reject[ing] plaintiffs’ argument that the district court erred in not
      allow ing Jesse Trentadue to pursue his separate emotional distress
      claim against the government along with plaintiffs’ other FTCA
      claims. Plaintiffs made a series of conclusory allegations that the
      DOJ w as attempting to “indict” Jesse Trentadue for tampering with
      witnesses. The district court properly concluded that these
      allegations were collateral to the issues before the court involving
      Kenneth Trentadue’s death and declined to make additional findings.
      M oreover, the plaintiffs’ allegations are primarily centered around
      the conduct of the government’s trial counsel during discovery, and
      are not evidence of misconduct by federal officials investigating
      Trentadue’s death. W e see no abuse of discretion by the court in
      limiting evidence on this issue.

      On remand, M r. Trentadue requested the district court to “dismiss[] without

prejudice . . . Jesse C. Trentadue’s severed claim of emotional distress based upon

the U nited States’ efforts to indict him.” A pp., vol. II at 609. Instead, the court

concluded that its “pretrial rulings on the collateral nature of Jesse Trentadue’s

purported claim merged into the court’s final judgment in this matter and were

appealable by plaintiffs,” App., vol. III at 757, and that “the extensive record in

this case does not support plaintiffs’ contention that this claim was ‘severed’ to

be preserved for some part of a later trial in this proceeding,” 

Furthermore, the court found “it would not be proper” in the context of our

limited remand to consider this separate claim. 

Accordingly, the court

denied the Family’s request.

      W e agree with the district court on this issue. As noted above, the district

court had previously stated that it did not consider Jesse Trentadue’s claim

alleging the government’s improper attempt to indict him to be part of this

                                          -8-
lawsuit. M r. Trentadue was clearly on notice before his first appeal that insofar

as the district court was concerned, he would have to file a separate lawsuit to

raise this “collateral” claim against the government. W e just as clearly affirmed

that determination in Trentadue 

. Consequently, there was

nothing regarding this claim left in this lawsuit for us to remand to the district

court.

         As the Seventh Circuit has succinctly stated, on remand a district court

“may address only (1) the issues remanded, (2) issues arising for the first time on

remand, or (3) issues that were timely raised before the district and/or appellate

courts but which remain undecided.” United States v. M orris, 

, 898

(7th Cir. 2001). The Family’s motion to dismiss was not a remanded issue and

did not arise out of the present remand. The district court therefore did not abuse

its discretion in denying the Family’s request to file a motion to dismiss on

remand. The Family had ample opportunity to seek dismissal of this issue from

the district court before the first appeal.

         In sum, we R EM A N D for additional findings specific to each individual

plaintiff to support the district court’s conclusion that the emotional distress of




                                              -9-
each was severe under Oklahoma law, and we AFFIRM the court’s refusal to

consider further M r. Trentadue’s motion to dismiss his collateral claim.


                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Circuit Judge




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