Tied Up in the Tenth Circuit
I have been litigating a case in the Tenth Circuit that produced an unusual result. I lost before the panel, but a strong dissent from Judge Ebel convinced the Tenth Circuit to rehear the case en banc. Twelve judges sat on the case. On May 17, 2006, just a week after the en banc argument, I received the Court’s per curiam opinion announcing that it was evenly divided, 6-6. The Court thus affirmed the district court and vacated the panel opinion without issuing any law for the circuit. This frustrating result has created a mini-debate among those I have consulted about filing a cert. petition in the Supreme Court. Some of the experienced Supreme Court practitioners with whom I have discussed the case are convinced that the 6-6 split increases the likelihood that the Supreme Court will grant cert., while others believe that the lack of any precedent on this issue in the Tenth Circuit detracts from its cert-worthiness. I would be very interested to hear from anyone with an opinion on the matter whether they think the Tenth Circuit’s tie vote makes this case a better, or worse, candidate for Supreme Court review. (Obviously, getting the Court to grant review is always a long shot; I’m just interested to know how people think this odd result from the en banc court will affect my chances).
For those who are interested, here is a little background information on the case: My client, Cornelius Peoples, filed suit in the Kansas District Court against prison guards employed by Corrections Corporation of America (CCA). Mr. Peoples, a federal prisoner, alleges that guards at CCA’s Leavenworth, Kansas, facility failed to protect him from attacks by other prisoners even after he repeatedly requested that he be removed from his cell block for his own safety. Claiming a violation of his Eighth Amendment rights, he brought suit under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. Although it’s clear that Mr. Peoples could have brought a Bivens action if he were incarcerated in a government-run prison, the circuits are divided on the question whether prisoners can sue private prison guards for constitutional violations. It has been an interesting case to litigate, but I am sorry that I have not been able to get a better result for my client.