January 31, 2017
Today, President Trump nominated Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to fill the vacant seat on the Supreme Court of the United States.
To assess Judge Gorsuch’s impact on the Supreme Court, should the Senate confirm his nomination, our Appellate and Constitutional Law Practice Group has started reviewing his written opinions and other legal writings. This Memorandum briefly summarizes Judge Gorsuch’s noteworthy opinions in several key areas of law, including (1) administrative law, (2) antitrust, (3) arbitration, (4) class actions, (5) environmental, (6) immigration, (7) intellectual property, (8) labor and employment, (9) personal jurisdiction, (10) privacy, (11) securities, and (12) tax.
Based on Judge Gorsuch’s prior opinions, President Trump appears to have fulfilled his campaign promise to “appoint judges very much in the mold of Justice Scalia.” Like Justice Scalia, Judge Gorsuch often decides cases by focusing on the text of the relevant statute or constitutional provision, without resorting to legislative history. Judge Gorsuch has also frequently resolved constitutional cases by examining the document’s original meaning. Notably, Judge Gorsuch has questioned Chevron deference, criticizing the doctrine for allowing “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution or the framers’ design.” Judge Gorsuch has also stated that an “overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”
Judge Gorsuch is admired on both sides of the political aisle. He is credited with a keen legal mind and praised for writing opinions that are clear and concise, sometimes with a Scalia-esque rhetorical flare. He routinely uses contractions, metaphors, and language designed to make his opinions approachable and readable for non-lawyers–even on dense subjects. For example, in a case involving sanctions for a plaintiff’s repeated discovery violations, Judge Gorsuch wrote that “the district court could’ve exercised its discretion” to excuse the plaintiff’s repeated noncompliance with document requests, but did not err in imposing sanctions because “[d]iscovery is not supposed to be a shell game, where the hidden ball is moved round and round and only revealed after so many false guesses are made and so much money is squandered.”
Judge Gorsuch was appointed to the Tenth Circuit by President George W. Bush in 2006 and confirmed a few months later by voice vote. He will turn 50 years old later this year. He earned his law degree from Harvard Law School, clerked for Judge David Sentelle of the United States Court of Appeals for the D.C. Circuit and Justices Byron White and Anthony Kennedy on the Supreme Court, and later earned a doctorate degree from Oxford University as a Marshall Scholar.
Our Appellate and Constitutional Law Practice Group will continue to review his jurisprudence and monitor the confirmation proceedings.
- WWC Holding Co. v. Sopkin, 488 F.3d 1262 (10th Cir. 2007). Judge Gorsuch dissented from the panel opinion, not based on a substantive disagreement with the majority, but “because the majority reverses the district court employing arguments that the appellant never made before that court, never pressed on appeal, and many of which the appellant has expressly disavowed.” Judge Gorsuch also opined that “the majority implicitly rejects the [agency’s] understanding of its own order without pausing to consider whether the agency is entitled to some degree of deference regarding the meaning of its own decree.”
- United States v. Nichols, 784 F.3d 666 (10th Cir. 2015). Judge Gorsuch dissented from the denial of rehearing en banc in this case involving whether the Sex Offender Registration and Notification Act’s notice requirements apply to offenders who leave the country. He wrote separately to opine that Congress violated Article I of the Constitution when it delegated power to the Attorney General to determine whether the Act applies to offenders who were convicted before the statute was enacted. After explaining that the separation of powers preserves individual liberty, Judge Gorsuch stated that “the prosecutor isn’t allowed to define the crimes he gets to enforce,” and suggested that the Act’s delegation of authority was unconstitutional under the “intelligible principle” test, especially in light of the more stringent delegation requirements for criminal statutes that he derived from Touby v. United States, 500 U.S. 160 (1991).
- De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015). Writing for a unanimous panel, Judge Gorsuch held that a decision of the Board of Immigration Appeals (“BIA”) did not retroactively bar the petitioner’s application for an adjustment of his immigration status. Under the Brand X doctrine, courts must defer to an agency’s interpretation of a statute despite an earlier and contrary court interpretation if the court previously concluded that the statute was ambiguous under Chevron. “[A] new agency rule announced in a Chevron step two/Brand X adjudication” is so similar to legislation that the presumption of prospectivity applies. In the alternative, “looking directly to the underlying due process and equal protection concerns that traditionally attend retroactive lawmaking” or applying the decision of the Supreme Court in Chenery II would justify the same result.
- Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016). Writing for a unanimous panel, Judge Gorsuch held that De Niz Robles prevented application of the same BIA decision to an alien who applied for adjustment after the BIA’s decision but before the Tenth Circuit recognized the BIA decision as binding under Brand X. Judge Gorsuch also concurred separately to criticize the continued viability of the Supreme Court’s decisions in Chevron and Brand X, opining that deference to agencies undermines the separation of powers and presents due process and equal protection concerns. He further contended that reliance interests are not enough to save the doctrines.
- Novell, Inc. v. Microsoft Corp., 731 F.3d 1064 (10th Cir. 2013), cert. denied, 134 S. Ct. 1947 (2014). In an opinion by Judge Gorsuch, the panel held that Microsoft did not violate Section 2 of the Sherman Act by refusing to share certain intellectual property with Novell, a maker of rival computer applications. Novell failed to prove refusal to deal under Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985), because Novell “presented no evidence from which a reasonable jury could infer that Microsoft’s discontinuation of this arrangement suggested a willingness to sacrifice short-term profits, let alone in a manner that was irrational but for its tendency to harm competition.” Novell also could not “recast Microsoft’s conduct as an ‘affirmative’ act of interference with a rival rather than a ‘unilateral’ refusal to deal,” and it could not prevail on a theory of deceptive actions because “the conduct Novell complains about (deception) is divorced from the conduct that allegedly caused harm to it and to consumers (the refusal to deal).” Overall, Judge Gorsuch wrote, “antitrust evinces a belief that independent, profit-maximizing firms and competition between them are generally good things for consumers.”
- Four Corners Nephrology Associates, P.C. v. Mercy Medical Center of Durango, 582 F.3d 1216 (10th Cir. 2009). In an opinion by Judge Gorsuch, the panel held that a hospital did not violate federal or state antitrust law by making one practice its “exclusive provider of nephrology services.” The hospital’s “failure to share its facilities is evidence of competitive–not anti-competitive–conduct, and whatever injury [the competing nephrologist] may have suffered from his exclusion from the hospital’s staff, it is not one that the antitrust laws were designed to remedy.”
- Chelsea Family Pharmacy, PLLC v. Medco Health Sols., Inc., 567 F.3d 1191 (10th Cir. 2009). Opining that he was “bound to abide” by circuit precedent, Judge Gorsuch concurred in the majority’s opinion regarding arbitrability of certain claims under a “narrow” arbitration clause. Judge Gorsuch wrote separately “to question this business of classifying arbitration clauses as ‘broad’ or ‘narrow'” as a means of determining the strength of the presumption arbitrability under the Federal Arbitration Act (a practice in several circuits). In Judge Gorsuch’s view, “[t]he question of arbitrability is simply and always a matter of straightforward contract interpretation,” as “[n]either Congress nor the [Supreme] Court . . . has suggested that we should engage in the scholastic task of classifying the parties’ [arbitration] clause according to some abstract taxonomy.” “When the arbitrability of a particular matter is plain on the face of the parties’ agreement, the agreement is enforceable according to its terms–whether the arbitration clause is ‘broad’ or ‘narrow’ or somewhere in between.” And if such a provision “contains some residual ambiguity,” it is at that point that the “presumption of arbitrability applies–and applies evenhandedly.”
- Hammond v. Stamps.com, Inc., 844 F.3d 909 (10th Cir. 2016). Writing for a unanimous panel, Judge Gorsuch rejected the plaintiff’s argument against removal, holding that the Class Action Fairness Act’s jurisdictional “in controversy” requirement of $5 million was “beyond doubt” satisfied by allegations that 312,000 class members were entitled to relief of at least $31.98 each, even though it was highly “unlikely” that the named plaintiff could ultimately secure such relief for all class members. Judge Gorsuch reasoned that the borrowed phrase “in controversy” was one “heavily encrusted with meaning” prior to CAFA’s enactment, and had never required a “probabilistic judgment” into “what damages the plaintiff will likely prove.” CAFA jurisdiction–and thus removal–depends on “what a factfinder might conceivably lawfully award.”
- Hydro Res., Inc. v. EPA, 608 F.3d 1131 (10th Cir. 2010) (en banc). In an opinion by Judge Gorsuch, the en banc Tenth Circuit vacated a final land status determination under the Safe Drinking Water Act on the ground that the EPA lacked permitting authority because the property was not “Indian lands.” EPA previously defined “Indian lands” to be synonymous with the term “Indian country” in a federal criminal statute, and the EPA’s interpretation of “Indian lands” in this case was inconsistent with the Supreme Court’s interpretation of “Indian country” in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998). The history and structure of the statute, as well as the decisions of sister circuits, also supported the result. Five judges dissented.
- Wyoming v. U.S. Dep’t of Interior, 587 F.3d 1245 (10th Cir. 2009). In a unanimous opinion by Judge Gorsuch, the panel held that a new Park Service rule on snowmobiles in Yellowstone National Park mooted the appeal. The district court had entered a judgment allowing access until the Park Service created a new rule. Because “the Park Service’s new regulation, not the court’s order, will govern snowmobile access in Yellowstone,” the panel dismissed the appeal as moot, vacated the judgment, and remanded with instructions to dismiss the case.
- United States v. Adame-Orozco, 607 F.3d 647 (10th Cir. 2010). Writing for a unanimous panel, Judge Gorsuch held that a defendant prosecuted for illegal reentry may defend based on certain deficiencies in the removal proceeding, but not in any state proceeding or conviction underlying the removal order. According to Judge Gorsuch, the plain meaning of the statute limited the defense to situations in which the defendant had been deprived of judicial review of the deportation order, not its underlying facts or bases. Judge Gorsuch also explained that the removal statute did not entitle the defendant to a stay of removal until state appellate and collateral proceedings related to the underlying conviction were finally resolved.
- Iliev v. Holder, 613 F.3d 1019 (10th Cir. 2010). Judge Gorsuch, writing for a unanimous panel, held that the courts of appeals have jurisdiction to review the legal standard applied to a petitioner seeking a “hardship waiver” from immigration removal, but do not have jurisdiction to review the ultimate decision whether to grant the waiver. Judge Gorsuch first rejected the government’s argument that, because the ultimate decision was discretionary, federal courts lacked jurisdiction to review errors of law as to statutory criteria. He next rejected the petitioner’s argument, based on Oropeza-Wong v. Gonzales, 406 F.3d 1135 (9th Cir. 2005), that federal courts retain jurisdiction to review credibility determinations in immigration proceedings. Proceeding to the merits, Judge Gorsuch concluded that the Board of Immigration Appeals had not applied the incorrect legal standard and accordingly dismissed the remainder of the petition.
- Porro v. Barnes, 624 F.3d 1322 (10th Cir. 2010). Writing for a unanimous panel, Judge Gorsuch held that the Due Process Clauses of the Fifth and Fourteenth Amendments are the proper standards for assessing excessive force claims by individuals in immigration detention. Judge Gorsuch noted that the Fourth Amendment limits the reasonable force used to seize an individual, while the Eighth Amendment limits lawful punishment imposed post-conviction, both of which are inapplicable to immigration detention. Instead, individuals in immigration detention are most similarly situated to arraigned individuals awaiting trial, and excessive force claims in the latter situation implicate the Due Process Clauses. Thus, the same constitutional framework applies to immigration detention.
- Storagecraft Tech. Corp. v. Kirby, 744 F.3d 1183 (10th Cir. 2014). Writing for a unanimous panel, Judge Gorsuch held that Utah’s Uniform Trade Secrets Act allows a trade secret plaintiff to obtain “reasonable royalty” damages without proving that the misappropriating defendant made any personal commercial use of the secret. The text of the Utah statute compelled that result because the statute, like the federal Defend Trade Secrets Act of 2016, makes reasonable-royalty damages available for a “misappropriator’s unauthorized disclosure or use of a trade secret.” Judge Gorsuch further held that the jury’s $2.9 million verdict against the defendant was reasonable because, although the defendant apparently disclosed the trade secret to a competitor out of spite and not for personal gain, the jury could have reasonably concluded that a hypothetical licensee in the defendant’s position would have been forced by the plaintiff to pay a significant royalty for a trade-secret license that included the right to share the secret with a competitor.
- Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008). Writing for a unanimous panel, Judge Gorsuch held that a designer’s digital models of Toyota cars were insufficiently original to warrant copyright protection. The digital models depicted “nothing more than unadorned Toyota vehicles” and lacked expressive features such as “unique shading, lighting, angle, [or] background scene.” Because the models were intended to serve merely as digital replicas of the Toyota vehicles, and because the putative copyright holder had no role in the vehicle designs themselves, the models did not exhibit the “creative spark” necessary for copyright protection.
- Russo v. Ballard Med. Prods., 550 F.3d 1004 (10th Cir. 2008). Writing for a unanimous panel, Judge Gorsuch held in part that a trade secrets claim was not conflict preempted by the patent laws, where the trade secret plaintiff recovered the defendant’s total profits from selling a patented device that incorporated the stolen secrets. Judge Gorsuch acknowledged that “a state law claim automatically (or per se) guaranteeing a plaintiff the full value of a defendant’s patents could interfere with patent law.” But Judge Gorsuch concluded that patent law does not preclude a trade secret plaintiff from proving, in any given case, that the defendant’s misappropriation was the cause of all of the defendant’s profits for the patented product.
Labor and Employment
- Zamora v. Elite Logistics, Inc., 478 F.3d 1160 (10th Cir. 2007) (en banc). Judge Gorsuch wrote a concurrence in this Title VII employment case to weigh in on the en banc disagreement regarding the interrelationship between the Immigration Reform and Control Act (IRCA) and Title VII. Because the appellant himself declined to challenge the district court’s ruling that IRCA’s anti-discrimination provision applies only to hiring and not to terminations, Judge Gorsuch opined that it was unnecessary for the Tenth Circuit to address IRCA’s impact: “Addressing such a novel legal question for the first time en banc and on our own motion–without the benefit of detailed briefing from the litigants affected by our decision, a panel decision on point, or prior opinions from our sister courts–runs the risk of an improvident or ill-advised result given our dependence as an Article III court on the traditions of the adversarial process for sharpening, developing, and testing the issues for our decision.”
- Johnson v. Weld Cnty., 594 F.3d 1202 (10th Cir. 2010). Writing for a unanimous panel, Judge Gorsuch held that an employee alleging discrimination in violation of, among other things, Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) could not survive summary judgment because she failed to rebut her former employer’s evidence suggesting both that the male candidate it hired instead of her had superior qualifications and that she was not, at the time of the hiring decision, disabled within the meaning of the ADA. That the male candidate proved incapable of performing his duties was insufficient to show discrimination. Summary judgment on the Title VII claim in favor of the employer was appropriate because the male employee’s qualifications were arguably superior, and certainly not overwhelmingly inferior, to the plaintiff’s. The plaintiff’s ADA claim failed because by her own admission she maintained a satisfactory level of job performance and therefore could not be fairly described as disabled under the terms of the ADA.
- Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174 (10th Cir. 2011). Writing for a unanimous panel, Judge Gorsuch held that the 300-day administrative limitations period applicable to a claim alleging a discriminatory transfer to a lower-paid position under the Age Discrimination in Employment Act starts running when the plaintiff first knew or should have known of his injury, whether or not he realized the cause of his injury was unlawful. The Lily Ledbetter Fair Pay Act, which resets the 300-day limitations clock each time an employer issues a new paycheck reflecting or effecting an act of discrimination, did not apply. That Act’s text and history, and the circumstances surrounding its adoption, indicate that it applies only to claims alleging unequal pay for equal work, not claims of discriminatory transfers to lower-paid positions.
- NLRB v. Cmty. Health Servs., 812 F.3d 768 (10th Cir. 2016). The majority of the panel held that the National Labor Relations Board may disregard interim earnings when calculating backpay awards for employees whose labor injury falls short of unlawful termination. The majority concluded that, because the Board’s policy justifications for its rule were within the scope of the National Labor Relations Act, the court was obligated to defer to the Board. Judge Gorsuch dissented, contending that the Board’s policy justifications went well beyond the Board’s statutory charge. The Board had claimed, for example, that its rule furthered the goal of promoting employment, but Judge Gorsuch considered this and other objectives to be outside the Board’s narrow mandate of providing backpay arising from unfair labor practices.
- Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008). Judge Gorsuch, writing for a unanimous panel, held that there were sufficient minimum contacts to establish personal jurisdiction in Colorado over a British copyright holder and its Delaware agent for purposes of a declaratory judgment action. Judge Gorsuch reasoned that the defendants had purposefully directed activities at Colorado when they intentionally sent a notice of copyright infringement to eBay (in California) in order to shut down the Colorado-resident plaintiffs’ online auction, resulting in the auction being terminated and posing a threat to the viability of the plaintiffs’ online business. Thus, although the notice of copyright infringement “traveled only to California, it can be fairly characterized as an intended means to the further intended end of cancelling plaintiffs’ auction in Colorado.” Judge Gorsuch reasoned, “it is something like a bank shot in basketball”: “[a] player who shoots the ball off of the backboard intends to hit the backboard, but he does so in the service of his further intention of putting the ball into the basket.”
- United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016). Writing for a fractured panel, Judge Gorsuch held that a government agency’s review of e-mail attachments forwarded to the agency by a private internet service provider qualified as a Fourth Amendment search. Judge Gorsuch declined to apply the third-party doctrine, and concluded that the defendant had a reasonable expectation of privacy in the contents of the e-mail. He then rejected the government’s assertion of the private search doctrine because only the agency conducted the actual search; the internet service provider had not actually opened the e-mail before forwarding it to the agency.
- Mink v. Knox, 613 F.3d 995 (10th Cir. 2010). Judge Gorsuch concurred in a panel opinion holding that qualified immunity did not protect a prosecutor who brought criminal defamation charges against the publisher of a parody blog post. After extensively discussing the Supreme Court’s First Amendment jurisprudence, the panel concluded that the law protecting the parody as free speech was clearly established. Judge Gorsuch concurred to observe that the outcome was compelled by circuit precedent holding that parodies of private persons are constitutionally protected free speech, but noted that the result was not compelled by Supreme Court precedent and was in tension with other case law and scholarship suggesting private plaintiffs enjoyed greater protection from libel.
- Lewis v. Tripp, 604 F.3d 1221 (10th Cir. 2010). Judge Gorsuch, over a dissent, held that a doctor, the chair of the state board of professional examiners, had qualified immunity from the plaintiff’s claims that the doctor had instigated an illegal search of his office and papers. Judge Gorsuch agreed that the search as conducted unlawfully exceeded the scope of an administrative subpoena, but nevertheless held that the defendant was immune because he initiated a process that would lead to a lawful request for documents. The defendant doctor was not present when the investigation became an unlawful search and was not linked to the search.
- Regan-Touhy v. Walgreen Co., 526 F.3d 641 (10th Cir. 2008). Judge Gorsuch wrote for a panel upholding the denial of an extensive discovery request seeking patient information and affirmed the dismissal of the underlying claims. The plaintiff alleged that her pharmacy had divulged her medical information and sought discovery of information relating to the pharmacy’s computer system and its employees’ personnel files. Judge Gorsuch affirmed the district court’s denial of discovery requests seeking “all email” and “all communication” from certain employees because such requests impose great costs and lack the “reasonable particularity” required by Rule 34.
- MHC Mut. Conversion Fund, L.P. v. Sandler O’Neill & Partners, L.P., 761 F.3d 1109 (10th Cir. 2014). Writing for a unanimous panel, Judge Gorsuch held that plaintiff shareholders failed to state a claim under Section 11 of the Securities Act of 1933, where the defendant issuer had given sincerely held and researched opinions about the future of the market for mortgage-backed securities, even though those opinions “wound up failing spectacularly.” Judge Gorsuch questioned whether the plaintiffs’ theory–that securities issuers were akin to fiduciaries and had to have an objectively reasonable basis behind statements of opinion–was “consisten[t] . . . with the statutory text and history” of the Act. But even assuming the availability of such a theory, Judge Gorsuch rejected it, holding that so long as the issuer “clearly convey[s] the limits of the work done to reach [the opinions],” as the issuer had done, there is no section 11 liability.
- In re Krause, 637 F.3d 1160 (10th Cir. 2011). Writing for a unanimous panel, Judge Gorsuch principally held that the IRS was entitled to attach a tax lien on assets that the debtor in a Chapter 7 bankruptcy, a serial tax evader, had transferred to trusts nominally benefiting his children. After determining as a matter of state law that the debtor had fraudulently conveyed the assets to the trusts, he held that fraudulently conveyed assets constitute “property” or “rights to property” subject to a tax lien under the relevant provision of the Internal Revenue Code. Judge Gorsuch also affirmed the bankruptcy court’s order imposing sanctions for the debtor’s destruction of evidence related to shell companies he allegedly created as tax shelters.
- Feinberg v. Comm’r, 808 F.3d 813 (10th Cir. 2015). Writing for a unanimous panel, Judge Gorsuch held that mandamus was unavailable to owners of a Colorado marijuana dispensary who sought to resist discovery in tax court litigation involving their entitlement to business expense deductions under the Internal Revenue Code. (Under the Code, such deductions are not allowed for expenses related to illegal drug sales.) Notwithstanding the Justice Department’s guidance discouraging prosecution of federal marijuana offenses in States like Colorado, the panel recognized that the dispensary owners had a colorable Fifth Amendment self-incrimination claim. But Judge Gorsuch nonetheless denied mandamus in light of circuit precedent holding “that any error in a district court’s order compelling production of civil discovery that the petitioners believed protected by the Fifth Amendment could be satisfactorily redressed in an appeal after final judgment.”
- Direct Mktg. Ass’n v. Brohl, 814 F.3d 1129 (10th Cir. 2016). In a concurring opinion, Judge Gorsuch opined that “the whole field in which we are asked to operate today–dormant commerce clause doctrine–might be said to be an artifact of judicial precedent.” Id. at 1148. He specifically criticized the Quill rule, which exempts out-of-state mail order sales from state sales tax, as an “analytical oddity” that “guarantees a competitive benefit to certain firms simply because of the organizational form they choose to assume.”
Other Notable Opinions
- Hobby Lobby Stores v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), aff’d sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). Concurring with the en banc majority opinion holding that Hobby Lobby and other corporations are “persons” within the meaning of the Religious Freedom Restoration Act, Judge Gorsuch stressed the need to accept Hobby Lobby’s and its owners’ own conceptions regarding the requirements of their faith. He further opined that the owners were likely to prevail on claims that the contraception mandate in the Affordable Care Act substantially burdened their religious exercise by forcing their company to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg. According to Judge Gorsuch, it is not “the place of courts of law to question the correctness or the consistency of tenets of religious faith.”
 Jonathan Adler, How Scalia-esque will Donald Trump’s Supreme Court Nominee be?, Wash. Post, Jan. 26, 2017, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/26/how-scalia-esque-will-donald-trumps-supreme-court-nominee-be/?utm_term=.e81f216698e1
 Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring).
 Neil Gorsuch, Liberals’N’Lawsuits, Nat’l Review, Feb. 7, 2005, http://www.nationalreview.com/article/213590/liberalsnlawsuits-joseph-6
 Lee v. Max Int’l, LLC, 638 F.3d 1318, 1322 (10th Cir. 2011).
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