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White v. Chafin

United States Court of Appeals, Tenth Circuit

July 10, 2017

PHILIP WHITE, Plaintiff - Appellant,
v.
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.

          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 ...


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