Court Opinions: 10th Circuit Court of Appeals Opinions for Dec. 6

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.


United States v. Zook

After the Environmental Protection Agency received a confidential complaint from a former tenant of a late 19th-century apartment building that the property was in disrepair and the paint was constantly chipping, the EPA issued an administrative subpoena to the building’s landlord, David Zook.

The subpoena sought documents concerning if Zook warned his tenants of the risks of lead-based paint as required by the “Lead Disclosure Rule.” Zook refused to comply, and the U.S. filed a petition for judicial enforcement. 

The district court issued Zook an order to show cause why the petition shouldn’t be granted, and while representing himself, Zook moved to quash the subpoena. He asserted the anonymous former tenant informed the EPA about the building in an effort to extort or blackmail him for the return of a security deposit. 

The district court determined Zook provided no evidence beyond his own assertions of improper motives and failed to demonstrate the EPA acted in an abusive manner toward him. The district court denied Zook’s motion and granted the petition, determining the subpoena was in the EPA’s legitimate statutory authority and wasn’t unduly burdensome. Zook filed a post-judgment motion which the district court denied and he then appealed. 

On appeal, Zook argued the court overlooked his statement regarding alleged cooperation between the informant and the EPA and that because the statement was in sworn pleading, it put the burden on the EPA to provide contrary evidence. By failing to do so, Zook argued, the court was required to infer the EPA abused its power. 

The 10th Circuit Court of Appeals ruled the district court made no error in rejecting this argument for lack of supporting authority or evidence because the burden to show an agency has abused the subpoena process is on the respondent to the subpoena. The 10th Circuit affirmed the lower court’s decision. 

Zimmer v. Gallagher

Patrick Zimmer filed six nearly identical civil actions against Magistrate Judge Gordon Gallagher, alleging Gallagher’s actions and orders in a separate case violated his 14th Amendment rights. Zimmer is seeking $5 million in damages. 

The district court summarily dismissed the cases, stating they “appear to be nothing more than an attempt to manipulate the assignment of judges in plaintiff’s cases” and are malicious and abusive. 

Zimmer filed a notice of appeal, which the district court denied leave to appeal under 28 U.S.C. 1915(a)(3), which states an appeal may not be taken if the trial courts certify it’s not in good faith. Zimmer argued that under Harper v. McDonald, cases brought under the constitutional amendments aren’t frivolous. 

The 10th Circuit Court of Appeals determined the district court didn’t abuse its discretion, and rather than appealing the district court’s unfavorable ruling in a separate case, Zimmer filed six suits against Gallagher. The court wrote that Zimmer’s reliance on Harper is unavailing because the case explained that the district court possessed jurisdiction over claims under the constitution when they aren’t frivolous. 

The 10th Circuit affirmed the dismissal of the six actions, dismissed the appeals as frivolous and gave Zimmer a strike under the Prisoner Litigation Reform Act. The 10th Circuit also noted Zimmer is obligated to pay the filing fee in full for each of his appeals.

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