The Tenth Circuit Court of Appeals issued its opinion in Adams v. Astrue on Tuesday, November 1, 2011.
The Tenth Circuit affirmed the district court's decision. Petitioner filed an application for SSI benefits on behalf of her son, who was five at the time, alleging that he became disabled in 2004 due to asthma. The agency denied the application initially and on reconsideration. An ALJ later issued a decision denying benefits, finding that the child (1) had not engaged in substantial gainful activity since the filing of his application, (2) his asthma, history of tonsillectomy, and history of bilateral pressure equalization tubes are severe impairments, but (3) he did not have an impairment or combination of impairments that met, medically equaled, or functionally equaled, any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listing of Impairments or Listing(s)). Petitioner, who is not an attorney, then sought judicial review on behalf of her son. The district court adopted the magistrate judge's report and recommendation and affirmed the Commissioner's denial of benefits.
Editor's Note: This article is the first in a three part series of job search and career transition articles. Part two and part three are also online.
If we want to create something new in our lives – a new career, a new relationship, a new firm, whatever – then we can't be reasonable about it. That's a tough idea to swallow for people who make their living being eminently reasonable.
"All progress depends on the unreasonable man." Why? Because reason can only look backward. It makes sense of what is and what has been. The trouble is, new, by definition, is what hasn't yet been. Therefore reason doesn't know about it, doesn't understand it, can't trust it.
Reason is all about precedent. It can only project and extrapolate. It looks at where we are now and how we got here, then projects its conclusions into the future, reverse engineering what happened in the past so we can do more of it in the future.
We call people who think like that realists – reasonable people – and credit them with being more in touch with reality than daydreamers and visionaries. We trust them not to lead us astray.
But what if we want to be and do something we haven't yet been and done? What if we're inspired to do something new?
Inspiration isn't at all reasonable. It wants idealists, not realists. It wants people who are consumed with an idea about what could be, not what is. People like that don't give a rip about reverse engineering. Instead, they buy what Einstein said about imagination being more powerful than knowledge. They're willing to push boundaries, believe what's considered irrational, illogical, impossible, even irreverent and heretical.
Inspiration wants response, not reason. It hooks our hearts, then reels us in. Want change? First get hooked by an inspired idea. Then get unreasonable.
The Tenth Circuit Court of Appeals issued its opinion in Greystone Construction, Inc. v. Nat'l Fire and Marine Ins. Co. on Tuesday, November 1, 2011.
On appeal, the Court agreed with Petitioner. The Court held that "because damage to property caused by poor workmanship is generally neither expected nor intended, it may qualify under Colorado law as an occurrence and liability coverage should apply." However, recovery may still be precluded by a business-risk exclusion or another provision of the policy.
The Tenth Circuit Court of Appeals issued its opinion in United States v. Randall, Jr. on Tuesday, November 1, 2011.
The Court rejected all of Petitioner's contentions. Withdrawal from a conspiracy requires a conspirator to attempt to undo the wrong that has been done in one of two ways: a co-conspirator can give authorities information with sufficient particularity to enable the authorities to take some action to end the conspiracy, or he can communicate his withdrawal directly to his co-conspirators in a manner that reasonably and effectively notifies the conspirators that he will no longer be included in the conspiracy, in this case the gang, in any way. As Petitioner did not fulfill either of these requirements, the Court found he was not entitled to the jury instruction for the affirmative defense. Also, the Court joined other Circuits in concluding that "for a charge of RICO conspiracy, a jury need only be unanimous as to the types of predicate racketeering acts that the defendant agreed to commit, not to the specific predicate acts themselves." Lastly, Petitioner failed to establish the existence of a single non-reversible error, let alone two or more non-reversible errors to constitute a cumulative effect, and therefore Petitioner was not deprived of a fair trial.
The Tenth Circuit Court of Appeals issued its opinion in Milligan v. Archuleta on Tuesday, November 1, 2011.
The Tenth Circuit reversed the district court's order of dismissal. Petitioner alleges he worked for the prison's maintenance department plumbing crew for approximately seventeen months without incident. But, in September 2010, his gate pass was pulled, which prevented him from accessing the areas in which the maintenance department was located. He was "allegedly informed that all inmates assigned to work in these areas had been reevaluated for their potential escape risk following the August 22 escape of another inmate and that 'out of the one-hundred-plus offenders assigned to and working in those areas the Plaintiff fit the profile and was designated as a potential escape risk.'" Petitioner alleges he "was further informed that his job in the maintenance department had not been taken away from him, but he would not be allowed to go back to work or into the assigned area until after an additional security perimeter fence, razor wire, and detection system was installed." However, after he filed a grievance regarding his designation as a potential escape risk, the facility job board allegedly took his job away and placed him in vocational janitorial school.
Petitioner's equal protection claim based on the pulling of his gate pass as well as a retaliation claim based on the loss of his job in the maintenance department were dismissed by the district court. However, the Tenth Circuit found this to be in error. While Petitioner's "complaint was deficient because it did not plead facts sufficient to show that [his] classification as an escape risk lacked a rational basis or a reasonable relation to a legitimate penological interest," the Court concluded that amendment would not "necessarily be futile or that this claim was [not necessarily] based on an indisputably meritless legal theory." Additionally, the Court found that just because Petitioner does not have a constitutional right to employment, this would not foreclose his retaliation claim arising from the loss of his prison job.
The Tenth Circuit Court of Appeals issued its opinion in United States v. Knight on Tuesday, November 1, 2011.
The Court disagreed with Petitioner's contentions, which fail under the plain error standard. "First, as a whole, the jury instructions did not mislead the jury," and courts are not precluded from issuing additional explanatory language; at least some flexibility is allowed in describing racketeering patterns. Petitioner's claim of plain error for failing to instruct the jury on the definition of constructive possession was similarly rejected for failing to demonstrate any error that affected his substantial rights. "Although [Petitioner] points to several cases in which courts distinguish between actual and constructive possession, he does not identify any case . . . holding that failure to provide a constructive possession instruction is erroneous." His conviction was therefore affirmed.
On Tuesday, November 1, 2011, the Tenth Circuit Court of Appeals issued five published opinions and five unpublished opinions.
Williams v. Cherokee Nation Entertainment, L.L.C.