FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 10, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
PHILIP WHITE,
Plaintiff - Appellant,
v. No. 16-1319
KYLLION CHAFIN, in his
individual and official capacity,
Defendant - Appellee,
and
ROBERT WYCOFF, in his
individual and official capacity,
Defendant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:13-CV-01761-CMA-MJW)
_________________________________
Andrew McNulty, Killmer, Lane & Newman, LLP, Denver, Colorado
(Darold W. Killmer and Mari Newman, Killmer, Lane & Newman, LLP,
Denver, Colorado, with him on the briefs), for Plaintiff-Appellant.
Geoffrey Klingsporn, Denver City Attorney’s Office, Denver, Colorado,
for Defendant-Appellee.
_________________________________
Before KELLY, MURPHY, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
Mr. Philip White obtained a judgment for $100,000 in compensatory
damages and moved for an award of prejudgment interest. The district
court denied the motion, viewing the bulk of the award as compensation for
noneconomic damages.
Mr. White argues that we should
overrule earlier opinions and find that prejudgment interest is
always available for compensatory awards under § 1983 or
conclude that the district court abused its discretion in
disallowing prejudgment interest.
For the second argument, Mr. White suggests that we could award
prejudgment interest on the entire compensatory award ($100,000) or at
least on the amount of his economic damages.
We reject Mr. White’s arguments. The first argument is invalid
because we cannot overrule published opinions by other Tenth Circuit
panels. Under those opinions, our review is confined to the abuse-of-
discretion standard. In applying that standard, we conclude that the district
court
had the discretion to deny prejudgment interest on the award of
noneconomic compensatory damages and
could reasonably decline to speculate on the amount that the
jury had regarded as economic damages.
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I. Mandatory Award of Prejudgment Interest
Mr. White urges a “bright-line rule” requiring the addition of
prejudgment interest whenever a claimant prevails under 42 U.S.C. § 1983.
Appellant’s Opening Br. at 7. But this bright-line rule would conflict with
our published opinions. Under those opinions, prejudgment interest “is not
recoverable as a matter of right.” Zuchel v. City & Cty. of Denver, 997
F.2d 730, 746 (10th Cir. 1993). Those opinions cannot be overruled by a
panel. Thompson v. Weyerhaeuser Co., 582 F.3d 1125, 1130 (10th Cir.
2009). Thus, our panel must apply those opinions and reject Mr. White’s
argument for a bright-line rule requiring prejudgment interest in all § 1983
cases.
In his reply brief, Mr. White contends that under 42 U.S.C. § 1988,
the federal law on prejudgment interest should incorporate Colorado law,
which mandates prejudgment interest. Mr. White waived this contention by
waiting to present it for the first time in his reply brief. See Wheeler v.
Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008) (“[I]ssues raised by an
appellant for the first time on appeal in a reply brief are generally deemed
waived, and we will not consider the arguments [the appellant] raised for
the first time in his reply brief.”). 1
1
In his opening brief, Mr. White urged incorporation of Colorado law
but addressed § 1988 in this context only in a single sentence of a
footnote: “This proposition is particularly supported by a reading of
Section 1983’s companion statute, Section 1988, which explicitly instructs
3
The contention is not only waived but also invalid. Notwithstanding
§ 1988, our court has held that awards of prejudgment interest are not
recoverable as a matter of right, as discussed above. See p. 3, above. In
addition, § 1988 would require use of state law only if federal law were
considered “deficient” in cases involving § 1983. 42 U.S.C. § 1988; see
Robertson v. Wegmann, 436 U.S. 584, 588 (1978). In our view, federal law
is not rendered “deficient” by the absence of a mandatory right to
prejudgment interest in § 1983 cases. See Furtado v. Bishop, 604 F.2d 80,
97 (1st Cir. 1979) (holding that § 1983 is not rendered “deficient,” for
purposes of § 1988, by the omission of prejudgment interest).
Because reliance on § 1988 is waived and invalid, we see no reason
to question our precedents even if we could. Under those precedents, an
award of prejudgment interest is not recoverable as a matter of right.
II. Denial of Prejudgment Interest to Mr. White as an Abuse of
Discretion
Because prejudgment interest is not recoverable as a matter of right,
we review the denial under the abuse-of-discretion standard. Zuchel v. City
& Cty. of Denver, 997 F.2d 730, 746 (10th Cir. 1993). The district court
abuses its discretion only by acting
courts to look to state law in making determinations.” Appellant’s Opening
Br. at 21 n.5. This perfunctory statement was insufficient to trigger
appellate review. See Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir.
1994) (stating that “perfunctory complaints,” which “fail to frame and
develop an issue,” are not “sufficient to invoke appellate review”).
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with arbitrariness, capriciousness, or whimsicalness or
with manifestly unreasonable judgment.
Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 763 (10th Cir. 1997). Thus,
Mr. White acknowledges that “[u]nder the current standard in this Circuit,
district courts have been given great leeway in their determinations as to
whether prejudgment interest should be awarded when a jury returns a
verdict of compensatory damages in Section 1983 cases.” Appellant’s
Opening Br. at 7. 2
According to Mr. White, the denial of prejudgment interest
constituted an abuse of discretion for four reasons:
1. The district court failed to consider whether an award of
prejudgment interest would be compensatory.
2. The district court erred in deciding that prejudgment interest is
not available for noneconomic damages and should have
granted prejudgment interest on the entire compensatory award
of $100,000.
3. The district court failed to consider pertinent factors relating to
the equity of awarding prejudgment interest.
4. In the alternative, prejudgment interest should have been
awarded on the amount of Mr. White’s economic damages.
We reject these arguments.
2
Mr. White criticizes our precedent creating this leeway. Appellant’s
Opening Br. at 7-24. But as discussed above, this precedent binds our
panel. See Part I, above.
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A. Consideration of Whether Prejudgment Interest Would Be
Compensatory for Noneconomic Damages
We have prescribed a two-step test to determine whether to award
prejudgment interest. The first step is to determine whether such an award
would compensate the injured party. Zuchel v. City & Cty. of Denver, 997
F.2d 730, 746 (10th Cir. 1993). If prejudgment interest would be
compensatory, the court must determine whether the equities would
preclude an award. Id.
Mr. White argues that the district court erroneously skipped the first
step, balancing the equities without deciding whether prejudgment interest
would have been compensatory. We disagree.
The district court began by determining that prejudgment interest for
noneconomic damages would not be compensatory. For this determination,
the court reasoned that Mr. White had primarily obtained noneconomic
damages. This determination led the district court to decide that
prejudgment interest was unnecessary to compensate Mr. White. In
reaching this decision, the court acted within its discretion. 3
3
Even though the district court considered whether prejudgment
interest was compensatory, the court could have skipped this step upon
determining that the equities would preclude an award. See Malloy v.
Monahan, 73 F.3d 1012, 1019 (10th Cir. 1996) (holding that the district
court did not err in denying prejudgment interest based on the equities
even though an award of prejudgment interest would have been
compensatory).
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Mr. White argues that the district court neglected to consider the
importance of “just compensation” for a delay in paying noneconomic
damages. Appellant’s Opening Br. at 43. For this argument, Mr. White
relies on Barnard v. Theobald, 721 F.3d 1069 (9th Cir. 2013), which held
that a plaintiff is entitled to compensation for a delay in paying
noneconomic damages. See Barnard, 721 F.3d at 1078. We reject this
argument.
In our view, the district court had the discretion to decline awarding
prejudgment interest for noneconomic damages. Mr. White implicitly
assumes that noneconomic damages are incurred instantly at a discrete
point in time and that any delay in payment is compensable. But the
district court could reasonably reject these assumptions, viewing
noneconomic damages as continuing over an undefined period. Under this
view, the jury could ascertain the amount from a sense of how much the
Mr. White relies on Zuchel v. City & County of Denver, 997 F.2d 730
(10th Cir. 1993), to argue that the district court erred by skipping the first
step. In Zuchel, the district court addressed both steps when denying an
award of prejudgment interest. 997 F.2d at 746. But our opinion did not
suggest that the district court had an obligation to address both steps.
Instead, we stated simply that “‘when an award would serve a
compensatory function, the court must still determine whether the equities
would preclude the award of prejudgment interest.’” Id. (quoting U.S.
Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1257 (10th Cir. 1988)).
Even if the district court had skipped the first step, the district court
found that the balance of equities weighed against awarding prejudgment
interest here. We could not disturb that ruling based on a decision to skip
the first of the two steps.
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damages are worth at the time of trial. Wilson v. Burlington N. R.R. Co.,
803 F.2d 563, 567 (10th Cir. 1986) (McKay, J., concurring). This approach
represents a reasonable exercise of discretion.
B. Consideration of the Pertinent Equitable Factors
Mr. White argues that the district court abused its discretion by
failing to consider Mr. White’s age, the public interest in fully
compensating Mr. White, and the outrageousness of the defendant’s
conduct. We have no reason to doubt the district court’s consideration of
the defendant’s culpability and the need for full compensation. Mr. White
obtained $300,000 in punitive damages, and the district court could
reasonably conclude that the egregiousness of the defendant’s conduct had
not required an award of prejudgment interest. And the court stated why it
regarded prejudgment interest as unnecessary for full compensation.
The district court did not mention Mr. White’s age. But the district
court had little reason to consider Mr. White’s age, for his opening brief
made no mention of his age. In Mr. White’s reply brief, his age is
referenced twice. The first reference appeared in the discussion of
noneconomic damages, a subject that was thoroughly discussed in the
district court’s order. See Appellant’s App., vol. I at 228 (“The arbitrary
fiction that Mr. White’s damages were ‘non-economic’ and are therefore
less compensable than someone who wasn’t retired, or eighty years old, or
blind, is unsupported by the law and against the interests of justice.”). The
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second reference to age involved the risk that Mr. White might not live
long enough to collect. See id. at 232 (“And, Mr. White is about to turn 81
years old; delay presents a very real risk that Mr. White may never see
what the jury has awarded.”). Even if the district court had agreed, 4 it
could reasonably have questioned why Mr. White’s potential death would
have tipped the balance on prejudgment interest.
In our view, the district court acted within its discretion in balancing
the equities.
C. Prejudgment Interest on $3,974.25 of Economic Damages
Finally, Mr. White contends that the district court should have
awarded prejudgment interest based on the award of economic damages.
For this contention, Mr. White insists that his evidence showed economic
damages of $3,974.25. But we do not know how the jury weighed that
evidence. Thus, the district court refused to attribute $3,974.25 to
economic damages. This reasoning fell within the district court’s
discretion.
In district court, Mr. White argued that the district court should
refuse to speculate on how the jury divided its award between economic
and noneconomic damages: “Any determination as to what dollar amount
4
The District of Colorado generally forbids parties from presenting an
argument for the first time in their reply briefs. In re Molycorp, Inc. Sec.
Litig., 157 F. Supp. 3d 987, 1003 n.10 (D. Colo. 2016); Alcohol Monitoring
Sys., Inc. v. Actsoft, Inc., 682 F. Supp. 2d 1237, 1242-43 (D. Colo. 2010).
9
of the compensatory damages award is non-economic . . . is speculative
and this Court should not ‘violate the sanctity of jury verdicts’ and
‘speculate on the matter.’” Appellant’s App., vol. I at 228 (quoting Hotel
Assocs. of Utah & Colo. v. Holiday Inns, Inc., 152 F.R.D. 206, 214 (D.
Utah 1993)).
Through this argument, Mr. White opposed any effort to speculate on
the jury’s calculations of economic and noneconomic damages. Now Mr.
White says the opposite. He arguably waived his current argument by
asserting the opposite in district court. But even in the absence of a
waiver, the district court acted within its discretion by refusing to
speculate on the jury’s calculations. After all, no one suggested to the
district court that it could ascertain the amount that the jury had attributed
to economic damages. As a result, we conclude that the district court did
not abuse its discretion when declining to assess prejudgment interest on
the alleged economic damages ($3,974.25).
III. Conclusion
In our circuit, prejudgment interest is not a matter of right; thus, the
district court must exercise its discretion. In this case, the district court
exercised its discretion, concluding that prejudgment interest was
unnecessary to compensate Mr. White. This conclusion entailed a
reasonable exercise of discretion. Thus, we affirm the denial of
prejudgment interest.
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Affirmed.
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