Six Oral Arguments Set for 10th Circuit

    The 10th Circuit Court of Appeals building in Denver, also known as the Byron White building.

    Resuming its oral arguments on March 4, the 10th Circuit Court of Appeals is set for arguments in six cases ranging from First Amendment rights of far-right groups and public statements by officials to differences between the U.S. Supreme Court and 10th Circuit in how to handle debt collection contact cases.

    VDARE Foundation v. Colorado Springs

    In 2017, the mayor of Colorado Springs issued a public statement to the community about public events backed by certain groups. The statement, which limited support for an event which could be controversial, caused a conference about immigration policy to be cancelled. The organizers of the conference, VDARE, allege the city deprived them of their First Amendment rights by issuing the statement.

    VDARE claims to be a “nonprofit educational” organization focused on the “unsustainability” of U.S. immigration policy. According to the Southern Poverty Law Center, VDARE is a white nationalist organization based in Connecticut and is listed by the organization as a hate group. The organization was founded in 1999 by “anti-immigrant activist and author” Peter Brimelow, who has authored a book called Alien Nation that follows “the flight of the last white family in Los Angeles.”

    In 2017, VDARE reserved the Cheyenne Mountain resort for a conference. VDARE alleged the resort was fully aware of who and what VDARE is and stands for, and that the conference could potentially draw media attention and protests.

    Around five months later, the City of Colorado Springs, through Mayor John Suthers, issued a public statement encouraging local businesses to “be attentive to the types of events they accept and the groups that they invite to our great city.” The statement said the city didn’t have the ability to restrict freedom of speech or direct businesses “like the Cheyenne Mountain Resort as to which events they may host.” Further, the statement noted the city wouldn’t provide support or resources to the event and doesn’t condone hate speech in “any fashion.” The next day, the resort announced it wouldn’t host the conference and cancelled VDARE’s contract.

    VDARE alleges the statement constituted a refusal to provide city services, including police protection, for the conference due to the group’s “controversial” viewpoints and published content in opposition to immigration policies, according to VDARE’s First Amendment claim.

    The city filed a motion to dismiss the complaint arguing that VDARE failed to state a claim and that the Colorado Governmental immunity Act bars the tort claim. VDARE replied that it was the statement made by the city that led to the resort’s cancelling of the event, and the mayor’s statement violated the organization’s rights and placed the rights and safety of people at risk. The organization appeals a dismissal of its First Amendment claim.

    Unrein v. PHC-Ft. Morgan

    From 2000 till 2017, Joan Unrein, a hospital employee of the defendant, PHC-Fort Morgan began to experience increasingly debilitating medical issues relating to sight and other issues.

    During that time, her vision deteriorated to the point that she needed a powerful magnifier to read and could no longer drive. Because she relied on family and friends to transport her to work, she couldn’t guarantee she could travel to the hospital on a regular schedule.

    In 2015, she asked for over $2,000 worth of magnifying equipment and an altered schedule to match her transportation needs. The hospital said it would purchase the equipment, and over the coming years identified requirements Unrein needed to perform her job. In 2016, Unrein requested intermittent leave under the Family Medical Leave Act, which was granted.

    Unrein eventually requested a full-time telecommuting arrangement and discussed the security of her home internet and other details such as moving computers from patient to patient for her to perform her work. The hospital denied the request, citing a need for a minimum of four hours a day of face-to-face interaction with patients, families, physicians and personnel among other duties requiring in-person attendance.

    The hospital eventually informed Unrein that her employment would be separated on March 31, 2017, noting the hospital had looked at ways to accommodate Unrein, but she made clear she wasn’t able to perform the essential functions of her job full-time. Unrein eventually alleged discrimination on the basis of disability under both the Colorado Anti-Discrimination Act and the Americans with Disabilities Act.

    A district judge found that Unrein had not proved her ADA failure to accommodate claim because the evidence in the record didn’t show that Unrein was qualified to perform the essential duties of her position with reasonable accommodations.

    Under the ADA, a plaintiff cannot assert a failure to accommodate a claim based solely on an allegation that a defendant employer failed to engage in an interactive process, according to the document. “The hospital worked diligently and consistently with Ms. Unrein to assess the accommodations she requested.”

    Lupia v. Medicredit

    The case arose under the Fair Debt Collection Practices Act, a federal law limiting the actions of third-party debt collectors. The law restricts the ways in which the collectors can contact debtors, including when and how often they can contact them. If the law is violated, the debtor can sue the company, including the individual debt collector, for damages and attorney’s fees.

    In April of 2017, Elizabeth Lupia sought medical services from a Colorado Springs hospital that was out of her in-network health insurance. She was seen by the hospital and received a bill for over $21,000. In July 20117, she provided a check in the amount of $7,154.36, believing it was the full settlement of all charges on the account.

    Lupia refused to pay further bills, and the hospital assigned the account to Medicredit, Inc. for collection. In April 2018, Medicredit sent Lupia a notice informing her of the debt. She postmarked a letter on May 2, disputing the validity or “any portion” of the debt. She stated her position that the check constituted the amount as full payment. She demanded that all telephone communication stop but invited written confirmation.

    Before it logged the letter into the system, Medicredit attempted to reach Lupia by phone again and left a voicemail. Medicredit also later sent letter acknowledging her dispute and that the company was investigating the matter. Those two contacts, the May 8 phone call and May 16 letter, formed the basis of all counts in the suit.

    The judge found that Lupia was entitled to summary judgment on her claims where those claims are premised on the phone call, but on the other claims Medicredit was entitled to summary judgment.

    Until recently, the 10th Circuit had a long-standing recognition that the FDCPA affirmed that a plaintiff whose rights were violated suffered an injury-in fact and otherwise met requirements of constitutional standing, according to the order.

    However, in the case Spokeo, Inc. v. Robins from 2016, the U.S. Supreme Court held that a plaintiff doesn’t automatically satisfy the injury-in fact requirement whenever a statute grants a statutory right and authorizes suing. To recover intangible harms, a plaintiff has to show an existing “concrete” injury in the statutory violation.

    In this way, the court must consider two factors: first, due deference should be given to the judgment of Congress in intangible harms being worthy of statutory protection. Second, because the case-or-controversy requirement is grounded in historical practice, the court should consider whether an alleged intangible harm has a close relationship to harm that has traditionally provided a basis for suits.

    “Although the 10th Circuit has yet to confront this question, numerous other
    federal courts have found alleged violations of various rights guaranteed by the FDCPA
    to constitute injury-in-fact,” the order states.

    The judge had “little trouble” finding that Lupia asserted the violation of concrete rights , and has standing to pursue the claims. The judge found that the three-day delay in receipt of the letter and logging it, led to the mistake of calling Lupia.

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