author: KELLY, Circuit Judge.

text:
    ASARCO, LLC, a Delaware limited liability company, Plaintiff-Appellant, v. NORANDA MINING, INC., a Delaware corporation, Defendant-Appellee.
    No. 16-4045
    United States Court of Appeals, Tenth Circuit.
    January 3, 2017

      Gregory Evans (Laura G. Brys of McGuireWoods, LLP, Los Angeles, California; David C. Reymann and Cheylynn Hayman of Parr,. Brown, Gee & Loveless, P.C., Salt Lake City, Utah, with him on the briefs), for Plaintiff-Appellant.
    Jeffrey C. Corey (Richard J. Angelí, Zack L. Winzeler, and Alan S. Mouritsen of Parsons Behle & Latimer, with him on the brief), Salt Lake City, Utah, for Defendant-Appellee.
    Before KELLY, GORSUCH, and HOLMES, Circuit Judges.
   KELLY, Circuit Judge.

Plaintiff-Appellant Asarco, LLC appeals from the district court’s entry of summary judgment against it in its contribution action against Noranda Mining, Inc., under Section 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9618(f) (2012). See Asarco, LLC v. Noranda Mining, Inc. (Noranda), No. 2:12-CV-527-TC-DBP, 2016 WL 1317493 (D. Utah Mar. 31, 2016). The district court held that Asarco was judicially estopped from pursuing its claim because of representations it made to a bankruptcy court concerning its settlement agreement with the EPA for the site in question. Id. at *12, *16. It also found, as a matter of law, that Asarco could not establish that it paid more than its fair share of costs for the site. Id. at *15-16. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse and remand.

Background

A. Asarco’s Settlement Agreement and Reorganization Plan

Asarco is an integrated mining, smelting, and refining company that filed -for Chapter 11 bankruptcy in August 2005. Because of its long history of mining in the United States, it had the “dubious distinction” of having the largest amount of environmental claims brought against it in any bankruptcy proceeding, totaling approximately $6.5 billion of non-duplicated proofs of claim. In re ASARCO LLC (Asarco I), No. 05-21207, 2009 WL 8176641, at *3-4 (Bankr. S.D. Tex. June 5, 2009). In 2009, after years of negotiations and hearings, the bankruptcy court approved a comprehensive settlement agreement, by which Asarco agreed to pay approximately $1.79 billion to resolve environmental claims at 52 sites in 19 states. Id. at *8. Although the agreement was negotiated on a global basis, it was divided into five independent settlement groupings of related sites. Id. The last of these groupings, the Miscellaneous Federal and State Environmental Settlement Agreement (“Miscellaneous Agreement”), settled for a combined $94.6 million. Id. at *9. It contained settlements for 26 sites in 12 states, including the site at issue in this appeal: the Lower Silver Creek/Richardson Flat Site (“Site”). Id. at *1, *54. It settled for $7.4 million. Id, at *54.

In reviewing Asarco’s proposed global settlement agreement, the bankruptcy court explained that it was bound by two different legal standards. First, Bankruptcy Rule 9019(a) gave the bankruptcy court discretion to approve a compromise or settlement plan. Id. at *9 (citing Fed. R. Bankr. P. 9019(a)). The court noted that it should approve a settlement when doing so is “fair, equitable, and in the best-interests of the estate.” Id. at *10 (citation omitted). Under this standard, the court “need not resolve disputed issues but should apprise itself of the relevant facts and law so that it can make an informed and intelligent decision as to the reasonableness of the settlement.” Id. (citation omitted).

The second governing legal standard was CERCLA itself. See id. at *36-39. Under CERCLA, the bankruptcy court was tasked with reviewing the settlement agreement to ensure it was “fair, reasonable, and consistent with CERCLA.” Id. at *37 (citations omitted). The court explained that because CERCLA encourages settlement, and because this proposal was the product of years of arm’s-length negotiation between the estate, the DOJ, and the EPA, its review of .the settlement proposal was necessarily limited. Instead of reviewing the settlement proposal de novo, its task was to ensure the settlement was procedurally and substantively fair—that it “reflected] a reasonable compromise of the litigation.” Id. at *38 (citation omitted).

Specifically, the court continued, “[t]o be fair to other non-settling responsible parties, a settlement should recover at least an amount ‘roughly correlated with[ j.some acceptable measure of comparative fault,’ apportioning liability ‘according to rational (if necessarily imprecise) estimates’ of fair shares of liability for a given facility.” Id. (second alteration in original) (quoting United States v. Cannons Eng’g Corp., 899 F.2d 79, 87 (1st Cir. 1990)). “Although the settlement should have ‘some reasonable linkage’ to the proportionate share of the settling parties, ‘[reasonable linkage’ does not mean that the agency must choose ‘the best or even the fairest method of apportioning liability.’ ” W. (alteration in original) (citation omitted) (quoting United States v. Wallace, 893 F.Supp. 627, 633 (N.D. Tex. 1995)).

To meet these standards, Asareo and the EPA presented the bankruptcy court with evidence that the settlement agreements were fair and equitable, both to the estate and its creditors (i.e., that the estate was not paying out substantially more than it owed) and under CERCLA (i.e., that the government was recovering enough to meet the public interest in cleanup of the environmental sites and that other Potentially Responsible Parties (“PRPs”) would not be saddled with liability far beyond their comparative fault). The bankruptcy court received testimony from 47 witnesses and admitted nearly 1700 exhibits into evidence. Id. at *2.

One of those who offered testimony in support of the settlement was Donald A. Robbins, the recently retired director of environmental services for Asareo. See 1 Aplt. App. 93 (“Robbins Declaration”). Mr. Robbins submitted an 18-page declaration to the bankruptcy court detailing why he thought the global settlement agreement should be approved under Bankruptcy Rule 9019. Regarding the Miscellaneous Agreement, he explained that the federal and state governments’ claims for these 26 sites totaled about $220 million, that Asarco estimated the total cost of remediation to range from $54.2 million to $149.5 million, and that the proposed settlement would resolve all the claims for around $95 million. Id. at 95-96, 96 n.3. He also discussed the reasons why either Asarco or the government would be willing to settle for more or less than what each believed the true cost of remediation would be. For example, he noted that there were many uncertainties that generally applied to all of the proposed settlements, including the existence and viability of other PRPs and the possibility that Asareo would be found jointly and severally liable for the full costs of remediation. Id. at 98-99. He concluded: “On the whole, I believe that there is a reasonable linkage between the settlement reached and ASARCO’s fair share of responsibility at all of these sites.” Id. at 99.

Mr. Robbins then discussed 23 of the Miscellaneous Agreement sites individually, providing the amount the government initially sought, the range of Asarco’s projections of remedial costs, and other issues that might affect Asarco’s liability for each site. Id. at 101-10. Regarding the Site at issue, he wrote:

The Lower Silver Creek/Richardson Flat[ ] site encompasses two distinct, but related areas: the Richai’dson Flat[] tailing impoundment and the downstream watershed. The area is close to Park City, Utah. EPA initially sought $607,000 to remediate only the tailings impoundment. Tn a late filed claim, EPA later sought $46,400,000 in future remedial costs related to the downstream watershed. ASARCO estimated that future remedial costs would range between $3,600,000 and $17,200,000 for [the] tail-ings impoundment and approximately $22,600,000 for the watershed. The proposed settlement is for $7,400,000. The key issues at the Lower Silver Creek site are:
• Joint and several liability: Whether ASARCO would be liable for 100% of the response costs. I understand that there may be other PRPs associated with this site, and the settlement amount reflects only ASARCO’S share of the response costs;
• The volume of contaminated material at the Lower Silver Creek area that needs to be treated and the response plan for treating that material is uncertain; and ' '
• Whether the excusable neglect doctrine applies to the government’s late-file[d] claim.

Id. at 103.

The bankruptcy court approved the global settlement on June 5, 2009. Asarco I, 2009 WL 8176641, at *53. As to the bankruptcy standard, the court found the settlement benefited the estate because it “eliminated] the need to conduct additional contested hearings as to each of the 62 sites addressed in the Settlement Agreements, avoid[ed] the risk of adverse litigation results ,, and fix[ed] ASARCO’s obligations for past and future, known and unknown environmental liabilities.” Id. at' *12. As for the environmental standard, the court concluded the settlement was consistent with the aims of CERCLA and fair to the government and other PRPs: “[t]he compromise at any given site generally reflects the litigation risk associated with the inherent difficulty of proving future cleanup costs.” Id. at *42. Further, the proposed settlement amounts were “substantively fair because they are roughly correlated with [Asarco’s] comparable fault, taking into account the litigation risks and additional factors.” Id.'

Finally, the bankruptcy court also approved certain reservations of rights by Asarco. First, the settlement agreement itself outlined how (a) the settling governments covenanted not to sue Asarco for liabilities related to the sites, (b)- Asarco would receive CERCLA contribution protection against other PRPs for the covered sites, and (c) neither the governments nor Asarco were giving up any claims they might have against non-settling parties related to the sites. See 3 Aplt. App. 408-15. Second, the final Chapter 11 Plan of Reorganization (“Reorganization Plan”) expressly reserved any contribution actions reorganized Asarco might have against non-settling PRPs, and then specifically listed the Richardson Flat site in the Schedule of Preserved Litigation Claims. 6 Aplt. App. 1204. The Reorganization Plan was approved by the federal district court at the bankruptcy court’s recommendation in November 2009. In re ASARCO LLC (Asarco II), 420 B.R. 314 (S.D. Tex. 2009).

B. The Site

The Site at issue generally refers to two related areas near Park City, Utah: (1) the Richardson Flat Tailings Impoundment, and (2) Lower Silver Creek, The area has been used since the 1870s for mining operations for lead and silver ore. As part of the process for extracting the ore, the pulverized rock—known as “tailings” and bearing a consistency of sand or powder— was left over. The tailings, would wash down .Silver Creek and accumulate in the Lower Silver Creek area, covering an area roughly three miles long. See 3 Aplt. App. 557. In 1912, the Richardson Flat Tailings Impoundment was created upstream as a dam and diversion system to catch the tailings for reprocessing. See id. at 655. These tailings at the two related sites caused the environmental contamination now in dispute.

C. Asarco’s Contribution Claim in the District Court

In June 2013, reorganized Asarco filed suit against Noranda seeking contribution under Section 113(f) of CERCLA for monies Asarco paid under the settlement agreement for cleanup costs associated with the Lower Silver Creek/Richardson Flat Site. 1 Aplt. App. 11, 23-30. Specifically, Asarco claimed the $8.7 million it paid—$7.4 million in principal plus $1.3 million in interest—was more than its fan-share of the cleanup costs, and that Noranda, as another PRP, should pay Asarco for its share. 1 Aplt. App. 28-30.

Noranda moved for summary judgment on four grounds: (1) Asarco failed' to preserve the contribution claim when it was discharged from bankruptcy; (2) Asarco was judicially estopped from seeking contribution because it represented to the bankruptcy court that it was paying only its fair share of liability for the Site; (3) Noranda was protected by a partial consent decree; and (4) Asarco’s claim failed as a matter of law because Asarco could not establish it paid more than its fair share of cleanup costs for the Site.

The district court held that Asarco successfully preserved its contribution claim against Noranda, but that Asarco was judicially-estopped from now bringing the claim because of its representations to the bankruptcy court. Noranda, 2016 WL 1317493, at *11, *15. It also held that Asarco could not establish that it paid more than its fair share of costs. Id. at *15-16. This appeal followed.

Discussion

A. Judicial Estoppel

On summary judgment, we view the facts and make all reasonable inferences in a light most favorable to the nonmovant, Asarco, in determining whether Noranda is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013). We then review the district court’s decision to judicially estop Asarco for an abuse of discretion. Eastman v. Union Pac. R.R. Co., 493 F.3d 1151, 1156 (10th Cir. 2007) (citation omitted).

Judicial, estoppel is an equitable remedy designed to “protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (internal quotation marks and citations omitted). The burden falls on the moving party to show the need, for its application—a difficult task given “our reluctance to impose the harsh remedy.” Vehicle. Mkt. Research, Inc. v. Mitchell Int’l, Inc., 767 F,3d 987, 988 (10th Cir. 2014). Indeed, we recognize the doctrine as a “powerful weapon” to be used only, when “less forceful remedies are inadequate,” id. at 993, and therefore apply it “both narrowly and cautiously,” Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1227 (10th Cir. 2011) (citation omitted).

Three factors typically inform a court’s decision to judicially estop a party. First, a party takes a position that is “clearly inconsistent” with its earlier position. New Hampshire, 632 U.S. at 750, 121 S.Ct. 1808 (citations omitted). Second, adopting the later position would create the impression that “either the first or the second court was misled.” Id. (citation omitted). And third, allowing the party to change its position would give it “an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 751, 121 S.Ct. 1808 (citations omitted); see also Hansen, 641 F.3d at 1227.

Noranda argues, and the district court held, that these factors are met here. In essence, Noranda says, Asarco represented to the bankruptcy court that the $7.4 million settlement was fair both to the government and to the bankruptcy estate because that amount represented only As-arco’s proportionate share of liability for the Site. To now allow Asarco to turn around and claim that this amount constituted an overpayment would reward Asar-co for effectively “concealing] a multi-mil-lion dollar asset from its creditors and the bankruptcy court.” Aplee. Br. at 3.

We disagree, and conclude that Noranda has not met its burden of showing that relief is warranted. Therefore, the district court abused its discretion in applying judicial estoppel. See Vehicle Mkt. Research, 767 F.3d at 989, 999-1000. The overall context of the CERCLA settlement approved by the bankruptcy court makes it apparent that Asarco’s positions are not clearly inconsistent, that to allow Asarco to pursue its claim would not create the perception that a court was misled, and that Asarco would not necessarily gain an unfair advantage by being allowed to pursue its claim now. We address each factor in turn.

1. Inconsistency of Positions

The district court found that (1) Asarco told the bankruptcy court its fair share of liability for the Site was $7.4 million; (2) Asarco now claims this amount actually represents more than its allocable share of costs; and (3) it follows that the two statements are “clearly inconsistent.” Noranda, 2016 WL 1317493, at *12-13.

The crux of this line of reasoning comes from one sentence in the Robbins Declaration: “I understand that there may be other PRPs associated with this site, and the settlement amount reflects only ASAR-CO’S share of the response costs[.]” 1 Aplt. App. 103.

. For its part, Asarco contends this statement, though poorly phrased, was meant to indicate Asarco’s belief that the $7.4 million figure represented Asarco’s “potential joint and several liability” for the Site. Aplt. Br. at 23. That is, “Robbins was explaining that Asarco’s allocable share of the response costs was one of the key uncertain issues that would not be resolved through litigation because the parties decided to settle.” Id. at 26. In a deposition, Mr. Robbins testified accordingly—that the $7.4 million figure was for Asarco’s “fair joint and several liability share.” 7 Aplt. App. 1365.

Noranda says this explanation does not hold up. It argues that, because the EPA’s total claim for the Site approximated $50 million, and Asarco’s estimations, to clean up the Site ranged from $26 million to $40 million, the only way a $7.4 million settlement would make sense is if it were solely for Asareo’s apportioned share. Aplee Br. at 42-43. Noranda buttresses this factual argument with a legal one: the bankruptcy court could only approve the settlement if it were correlated to Asarco’s “comparative fault”; it could not approve the settlement if Asarco was taking on the entirety of the potential liability. Id. at 47-48.

The latter argument first. Though it is true that a CERCLA settlement should be fair, reasonable, and roughly correlated with the responsible party’s comparative fault, see Cannons, 899 F.2d at 87, this guideline does not do away with the contribution provisions of CERCLA itself, see 42 U.S.C. § 9613(f). To encourage PRPs to settle, Congress provided that an entity that has resolved its liability to the government “for some or all of a response action ... in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement [with the government].” 42 U.S.C. § 9613(f)(3)(B); see also Young v. United States, 394 F.3d 858, 862 (10th Cir. 2005). Thus, as the bankruptcy court noted, “nothing in Cannons suggests that a settlement is necessarily unfair if a settling PRP pays more than an amount equivalént to its comparative fault.” Asarco I, 2009 WL 8176641, at *43. Were it otherwise, no party would settle' before a mihi-trial was held to determine its exact share of environmental liability—and then there would never be need for a contribution action by a settling party. Even acknowledging the tension between Bankruptcy Rule 9019 and CERCLA, we cannot agree that the bankruptcy court would err if it approved a settlement that might have been for more than Asarco’s exact share of environmental liability.

As for Noranda’s factual argument, the Robbins Declaration shows that Asarco’s actual estimate of remedial costs for the Site was $22.5 million for the watershed and between $3.6 million and $17.2 million for the Tailings Impoundment. 1 Aplt. App. 103; see also Asarco I, 2009 WL 8176641, at *54 (bankruptcy court recording approximately $3.6 million as Asarco’s low estimate for the Site). But one of the main uncertainties about how much the government’s claim was actually worth was whether it would even be allowed to proceed on the late-filed claim for the watershed. Thus, as the EPA explained in its brief to the bankruptcy court in support of the settlement, the $7.4 million settlement for the Site not only “discounted] for some uncertainty regarding the nature of Asarco’s operations on its leaseholds and the uncertainty of estimating costs when' a remedy has not been formally selected,” but also “reflected] the litigation risk associated with the timing of the claim amendment for this Site.” 1 Aplt. App. at 131.

CERLCA allows a party to settle for an inexact amount and later seek contribution from other PRPs for any amounts it overpaid. Since doing so, without more, does not equate to pursuing inconsistent positions, the district court’s conclusion is inconsistent with the nature of CERCLA claims and of Asarco’s underlying settlement.

2. Impression that a Cowt was Misled

It follows that neither do we think the second New Hampshire factor has been met. As the Supreme Court explained, “courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.” New Hampshire, 532 U.S. at 750, 121 S.Ct. 1808 (internal quotation marks and citation omitted).

Though the parties dispute whether the bankruptcy court’s approval of the settlement actually constitutes “sufficient ‘judicial acceptance’ to estop the party from later advancing an inconsistent position,” Noranda, 2016 WL 1317493, at *14 (quoting Reynolds v. Comm’r of Internal Revenue, 861 F.2d 469, 473 (6th Cir. 1988)), we, think the simpler inquiry is whether allowing Asarco to proceed with its contribution claim would create the impression that either court was duped—for it is this unfairness with which the equitable doctrine is concerned. We do not think it would. First, as discussed above, this is because we do not think the actual positions by Asarco necessarily conflict. But second, it is because the bankruptcy court itself knew and approved of Asarco’s preservation of contribution claims for the sites it settled. This came not only in the form of a general reservation in the settlement agreement, 3 Aplt. App. 411, but also as a specific reservation of a potential contribution action for the Site in the approved Reorganization Plan, 6 Aplt. App. 1200, 1204,

That is, it is one thing for the bankruptcy court never to be told of assets or potential claims by the debtor and then for the debtor to seek to bring those claims in a different court. E.g., Eastman, 493 F.3d at 1153. But it is another thing for the bankruptcy court that approved the settlement to also approve the debtor’s reservation of. rights with regard to such an asset. It, makes it much less likely that Asarco was “playing ‘fast and loose with the courts.’ ” Scarano v. Cent. R. Co., 203 F.2d 510, 513 (3d Cir. 1953) (citation omitted).

3. Unfair Advantage

Noranda also argues that allowing Asarco to pursue its contribution claim “would reward Asarco for either misleading the .bankruptcy court, the district court, or both,” Aplee. Br. at 58, and that this is “exactly the type of unfair advantage the. judicial estoppel doctrine is intended to prevent.” Id.

Yet the opposite could also be said—that it would be unfair to Asarco to prevent it from pursuing a claim it expressly reserved in bankruptcy. In Asarco’s view, it settled the environmental claims with the EPA for inexact amounts because it was relying on the CERCLA framework that allows it to pursue the difference in contribution actions later on. See 42 U.S.C. § 9613(f).

The specific statement in the Robbins Declaration does not change this. Given the context of the statement—appearing in the middle of an 18-page report on all the sites included in the Miscellaneous Agreement, and regarding a proposed settlement that at $7.4 million comprised less than one percent of the total global settlement of $1.8 billion—and given that Mr. Robbins testified in a deposition that he made a mistake in how he worded the statement, see 7 Aplt. App. 1365, we think it would be unfair to estop Asarco simply because of one ambiguous sentence.

Though it is true that we have generally been unreceptive to “debtors’ attempts to recover on claims about which they ‘inadvertently or mistakenly” forgot to inform the bankruptcy court,” Eastman, 493 F.3d at 1157, this case is easily distinguishable. In Eastman, for instance, the debtor failed to disclose his pending lawsuit as a potential asset of the estate in his bankruptcy petition. Id at 1153. The district court found, and we affirmed, that the debtor’s concealment of. this asset from the bankruptcy court was not inadvertent, but planned to mislead the bankruptcy court. Id. at 1154-55, 1159-60. Therefore, judicial estoppel was necessary to protect the integrity of the judicial process. Id.; see also Queen v. TA Operating, LLC, 734 F.3d 1081, 1087-91 (10th Cir. 2013). Though we do not say that inadvertent representations can never “count” for judicial estoppel purposes, we do think this case is sufficiently distinct from Eastman to warrant a different result.

B. Noranda’s Consent Decree and Asar-co’s Bankruptcy Settlement

The district court also held, as a matter of law, that Asarco cannot establish that it paid more than its fair share of costs for the Site or that Noranda would be liable for any part of the difference. Noranda, 2016 WL 1317493, at *15-16. The court provided two reasons for its decision. First, a 2006 consent decree between Noranda and the EPA gave Noranda contribution protection for costs associated with the Tailings Impoundment before March 1, 2006. Id. at *15. Second, the same statements that called for application of the judicial estoppel doctrine, “whether treated as judicial admissions or as undisputed substantive evidence of its pro rata share,” definitively established Asarco’s liability for the Site. Id. at *16.

First, the consent decree. It is true that Noranda is protected from contribution claims for “matters addressed” in the decree, 6 Aplt. App. 1083, and that those matters include costs incurred by the EPA in connection with the “Richardson Flat Tailings Site” through March 1,2006, id. at 1078. But it necessarily follows that the consent decree does not protect Noranda from (a) costs associated with the Tailings Site incurred after March 1, 2006, or (b) costs associated with other (if related) sites, such as Lower Silver Creek. So the question is whether the contribution Asar-co seeks falls within one of those two categories and, if so, whether Asarco is legally able to recover those costs from Noranda.

Regarding the timing issue, Noranda argues that because the EPA’s first proof of claim sought only $607,000 from Asarco for past response costs at the Richardson Flat Tailings Impoundment, its supplemental proof of claim, which totaled $50 million, was for past and future response costs related only to Lower Silver Creek. Aplee. Br. at 66-68. Indeed, this had to be the case, Noranda says, because by the time of the Asarco-EPA settlement, the EPA had entered into a consent decree with United Park City Mines Company (“UPCM”), another PRP, under which UPCM agreed to finance and carry out the future response costs for the Tailings Impoundment. Id.; see also 4 Aplt. App. 715-68. Thus, according to Noranda, Asarco cannot now seek contribution because UPCM, not Asarco, paid the EPA for any future response costs associated with the Tailings Im-poundment. Aplee Br. at 66-68.

The settlement agreement between As-arco and the EPA does not make any such timing distinctions. See 3 Aplt. App. 394-95, 400-01 (“In settlement and full satisfaction of all claims and causes of action of the United States '... against Debtors with respect to any and all costs of response incurred, or to be incurred, in connection with ... the Richardson Flat Site....”). Nor does a look back to the EPA’s proofs of claim settle the issue. Though the first proof of claim sought $607,000 from Asarco for “unreimbursed response costs” at Richardson Flat Tailings Impoundment, 5 Aplt. App. 932, the supplemental proof of claim “include[d] the Lower Silver Creek’ area .as part, of Richardson Flat,” id. at 959. Indeed, the EPA discussed the two areas together “because of the[ir] interconnection.” Id. Thus, the claims for the sites were also combined:

13. ASARCO is liable to reimburse the United States for the costs ... of actions taken or to be taken by the United States in response to releases and threatened releases of hazardous substances at Richardson Flat and in the Lower Silver Creek area.
14. In addition to the $607,000 asserted in the United States’ August 1, 2006 Proof of Claim for Richardson Flat, the United States estimates at this time that its future response costs at Richardson Flat and in the Lower Silver Creek area will total approximately $50 million.

Id. at 960. Further, the Robbins Declaration itself discussed the future remedial costs for the Tailings Impoundment: “AS-ARCO estimatéd that future remedial costs would range between $3,600,000 and $17,200,000 for [the] tailings' impoundment and approximately $22,500,000 for the watershed.” 1 Aplt. App. 103.

Noranda’s geographical argument is similarly unavailing. In its Complaint, As-arco sought contribution from Noranda “for its equitable share in contribution to Asarco’s Richardson Flat[] Site Government Settlement.” 1 Aplt. App. 30. Asarco described that site as including, “[i]n addition to the tailings impoundment, ... the Ontario #3 mine, the Keetley Drain Tunnel, portions of the Lower Silver Creek Area, a slurry line, and other associated mine workings.” Id. at 26. Thus,, by its terms the Complaint seeks relief for costs associated with sites outside of the .area Noranda settled. We disagree that either Noranda’s or Asarco’s settlement agreements foreclose Asarco’s claim as a matter of law.

Second, for the same reasons we do not think Asarco’s position before the bankruptcy court warrants judicial estop-pel, neither do we agree that Asarco’s representations constitute undisputed substantive evidence of its exact share or a judicial admission of liability. At the summary judgment stage, the evidence must be viewed in a light most favorable to Asarco, and Asarco has presented evidence to dispute Noranda’s interpretation of the Robbins Declaration on this point. Therefore, we find that Asarco has raised a genuine issue of material fact and that it should be able to present evidence as to (1) why it believes it paid for post-2006 costs related to the Richardson Flat Tailings Impoundment, and (2) why at least some of those costs, and any other costs for Lower Silver Creek and related sites, should be borne by Noranda.

We therefore REVERSE the district court’s grant of summary .judgment and REMAND the case for proceedings consistent with this opinion.

      . In its briefing, Asarco notes that it also paid an additional $1,7 million in costs related to the Site, in the form of a CERCLA settlement with another PRP, Atlantic Richfield, which settled with United Park City Mines Company on behalf of itself and Asarco. See Aplt, Br. at 12 n.7; Aplt Reply Br. at 18 n.10, 26-27; see also 6 Aplt. App, 1035-69. Asarco did not seek contribution for this settlement in its Second Amended Complaint against Noranda. See 1 Aplt. App. 29-30.

      . Specifically, the Reorganization Plan was approved by the federal district court in Texas in November 2009. Asarco II, 420 B.R. at 357. It adopted the bankruptcy court’s report and recommendation to approve the Parent's (i.e„ Asarco Incorporated and Americas Mining Corporation) plan for reorganization of the debtor (Asarco LLC). Id. at 357-58. It is ' this Reorganization Plan that includes the reservation to reorganized Asarco of the potential PRP contribution claims. 6 Aplt. App. 1200-04.

      . "Judicial admissions are 'formal, deliberate declarations which a party or his attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters or of facts about which there is no real dispute.'" U.S. Energy Corp. v. Nukem, Inc., 400 F.3d 822, 833 n.4 (10th Cir. 2005) (quoting Kempter v. Hurd, 713 P.2d 1274, 1279 (Colo. 1986)). True judicial admissions are binding in the entirety of the case in which they were made. In contrast, "ordinary evi-dentiary admissions” can be controverted or explained by a party, and such admissions include "pleadings in another case, superseded or withdrawn pleadings in the same case, [and] judicial admissions in another case.” 30B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 7026 (Kenneth W. Graham, Jr. & Michael H. Graham eds., 4th ed. 2014) (collecting cases). Thus, even assuming Mr. Robbins’s statement to the bankruptcy court was a judicial admission in that case, it would only be an evidentiary admission in this one.


source: Caselaw Access Project

author: BACHARACH, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Nicolas P. JUSZCZYK, Defendant-Appellant.
    No. 15-3323
    United States Court of Appeals, Tenth Circuit.
    Filed January 3, 2017
    Melody Brannon, Federal Public Defender, Thomas W. Bartee, Assistant Federal Public Defender, and Daniel T. Han-smeier, Appellate Chief, Kansas Federal Public Defender, Kansas City, Kansas, for Defendant-Appellant.
    Thomas E. Beall, Acting United States Attorney, Jared S. Maag, Assistant United States Attorney, District of Kansas, Topeka, Kansas, for Plaintiff-Appellee.
    Before LUCERO, McKAY, and BACHARACH, Circuit Judges.
   BACHARACH, Circuit Judge.

The Fourth Amendment does not prohibit a search of property that has been “abandoned.” United States v. Ruiz, 664 F.3d 833, 841 (10th Cir. 2012). The property at issue here is a backpack owned by Mr. Nicolas Juszczyk, who was repairing his motorcycle in the backyard of Ms. Tina Giger. A concerned neighbor contacted police, who came to investigate. When they did, Mr. Juszczyk threw the backpack onto Ms. Giger’s roof, where the backpack was later retrieved by police and searched. Inside was methamphetamine, a firearm, arid documents bearing Mr. Juszczyk’s name. We must determine: Did Mr. Juszczyk lack an objectively reasonable expectation of privacy after throwing his. backpack onto Ms. Giger’s roof? We. conclude that any expectation of privacy was not objectively reasonable; as a result, Mr. Juszczyk abandoned the backpack and the search was lawful.

1. Standard of Review

Mr. Juszczyk moved to suppress evidence found during the search, but the district court denied the motion. We review this ruling de novo. See United States v. Garzon, 119 F.3d 1446, 1449 (10th Cir. 1997) (stating that we engage in de novo review of the district court’s determination on the objective element of abandonment).

In applying de novo review, we view the evidence in the light most fayorable to the ruling and review the district court’s factual findings under the clear-error standard. See United States v. Morgan, 936 F.2d 1561, 1570 (10th Cir. 1991) (viewing the evidence in a light favorable to the ruling); United States v. Ruiz, 664 F.3d 833, 838 (10th Cir. 2012) (reviewing factual findings under the clear-error standard).

2. In applying this standard of review, we conclude that Mr. Juszczyk abandoned the backpack.

Under this standard of review, we conclude that Mr. Juszczyk abandoned his backpack.

Property is considered abandoned if the owner lacks an objectively reasonable expectation of privacy. United States v. Garzon, 119 F.3d 1446, 1449 (10th Cir. 1997). Abandonment contains subjective and objective components. Id. Applying these components, a court must find abandonment if Mr. Juszczyk’s toss onto the roof reflected his intent to relinquish any right to the backpack or if his expectation of privacy was no longer objectively reasonable. See id.

Mr. Juszczyk obviously was trying to conceal the backpack from police. But did he intend to come back to get it? Even if he did, he would have lacked an objectively reasonable expectation of privacy after throwing the backpack onto the roof.

Ms. Giger testified that she had not allowed Mr; Juszczyk to keep .anything on the roof. He was allowed to use her backyard to fix his motorcycle; he had no permission to keep his belongings on the roof. Thus, Mr. Juszczyk would need to obtain permission from Ms. Giger to go onto her roof to retrieve the backpack.

Viewing the evidence favorably to the ruling, one could justifiably question why anyone would have expected Ms. Giger to allow Mr. Juszczyk onto the roof. The two were not close. When confronted by the police, Mr. Juszczyk did not even know the homeowner’s gender or name. And Mr. Juszczyk had seen the homeowner only about three times in his life. If Mr. Juszc-zyk would have asked to go onto the roof to retrieve his backpack, the homeowner would presumably have been suspicious. She had just had her house searched after giving Mr. 'Juszczyk permission to fix his motorcycle in her backyard.

We addressed a similar situation in United States v. Morgan, 936 F.2d 1561 (10th Cir. 1991). There the defendant threw a bag onto the porch of a house owned by someone he was accompanying. Nonetheless, we held that there was an abandonment. “The fact that Mr. Morgan was in the backyard of someone he knew or was acquainted with, at the time he threw the bag, is of little significance. The record reveals we do not have before us a case where the item was left to the care or responsibility of another, or where there is a delayed indication of an intent’to retain an expectation of privacy in the item.” Morgan, 936 F.2d at 1570-71.

As Mr. Juszczyk ’ argues in his reply, Morgan differs from our case because there the defendant had no one who could retrieve the bag; here Ms. Giger theoretically could have retrieved the backpack for Mr. Juszczyk. But viewing the evidence in the light most favorable to the ruling, Mr. Juszczyk could not reasonably expect Ms. Giger to retrieve the backpack and keep it for him after he had thrown it onto her roof, sparking the arrival of police and a search of her house.

In his reply brief, Mr. Juszczyk argues that Ms. Giger or an acquaintance, who sometimes stayed with Ms. Giger, could have retrieved the backpack. That is true. But viewing the evidence in the light most favorable to the ruling, we conclude that such an expectation would have been unreasonable. The district court could justifiably infer that Ms. Giger would not have allowed Mr. Juszczyk to retrieve his backpack after he had tried to conceal it on her rooftop, leading to a police search of her house, when Mr. Juszczyk was supposed to be fixing his motorcycle in the backyard.

In these circumstances, the district court properly concluded that Mr. Juszc-zyk had abandoned the backpack. Viewing the evidence in the light most favorable to the ruling, we conclude that Mr. Juszczyk did not retain an objectively reasonable expectation of privacy once he threw the backpack onto the roof. In these circumstances, the district court correctly denied Mr. Juszczyk’s motion to suppress.

Affirmed.

      . Our case law provides conflicting signals on the standard of review. See United States v. Garzon, 119 F.3d 446, 1453 (10th Cir. 1997) (Porfilio, J., dissenting). We have sometimes treated abandonment as a factual matter, limiting our review under the clear-error standard. United States v. Austin, 66 F.3d 1115, 1118 (10th Cir. 1995); United States v. Hernandez, 7 F.3d 944, 947 (10th Cir. 1993); United States v. Trimble, 986 F.2d 394, 399 (10th Cir. 1993); United States v. Jones, 707 F.2d 1169, 1172 (10th Cir. 1983). Other times, we have treated abandonment as a dual inquiry, triggering clear-error review for a finding on the individual’s subjective intent and de novo review on the objective reasonableness of the individual’s expectation of privacy. United States v. Ojeda-Ramos, 455 F.3d 1178, 1187 (10th Cir. 2006); United States v. Garzon, 119 F.3d 1446, 1449 (10th Cir. 1997). Ordinarily, we resolve intra-circuit conflicts by giving precedence to the earlier of two conflicting opinions. Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996). In this appeal, however, we need not resolve this potential intra-circuit conflict because we would affirm even under de novo review.

      . The district court found that Mr. Juszczyk had "failed to show an ongoing and meaningful connection to [Ms.] Giger’s home.” R. vol. 2, at 179.

      . In his reply brief, Mr. Juszczyk argues that a neighbor could retrieve the backpack only by committing a trespass:
      The backpack was located on the roof of a private residence. Tn order to retrieve the backpack, a person would have had to enter the yard with a ladder and climb the ladder to the roof of the home. It- is' implausible to think that society is prepared to recognize such actions as reasonable. Indeed, to do such a thing would be to commit a trespass, something the law does not allow.
      Appellant’s Reply Br. at 10-11. Mr. Juszczyk would have been in the same position as a neighbor; both would have had to commit a trespass or to obtain new consent to go onto •the roof to retrieve the backpack.


author: TYMKOVICH, Chief Judge. TYMKOVICH, Chief Judge,

text:
    Firma HELGET, Plaintiff-Appellant, v. CITY OF HAYS, KANSAS; Toby Dougherty; and Donald Scheibler, Defendants-Appelleés.
    No. 15-3093
    United States Court of Appeals, Tenth Circuit.
    Filed January 4, 2017

      Matthew L. Hoppock, The Hoppock Law Firm, LLC, Overland Park, Kansas, for Appellant.
    Jessica L. Skladzien (Alan L. Rupe with her on the brief), Lewis Brisbois Bisgaard & Smith, Wichita, Kansas, for Appellees Dougherty and Scheibler, and Amy J. Luck (Michael J. Seek with her on the brief), Fisher, Patterson, Sayler & Smith, LLP, Overland Park, Kansas, for Appellee City of Hays, Kansas.
    Before TYMKOVICH, Chief Judge, . LUCERO, and BACHARACH, Circuit Judges.
   TYMKOVICH, Chief Judge.

Firma Helget worked for the City of Hays, Kansas, as the administrative secretary for the Hays Police Department. In 2012, the City terminated Helget, and she initiated this 42 U.S.C. § 1983 action against the City, City Manager Toby Dougherty, and Police Chief Donald Scheibler, alleging they violated her First Amendment rights. Helget claims they terminated her in retaliation for her voluntarily providing an affidavit in support of a former police officer’s wrongful-termination litigation against the City.

The district court granted summary judgment in favor of the defendants on Helget’s First Amendment retaliation claims, concluding the City’s interest as a public employer outweighed Helget’s interest in her speech regarding a former employee’s litigation. The court also granted qualified immunity to Dougherty and Scheibler.

We affirm. Applying the familiar Garcetti/Pickering test, we conclude the City’s operational interests outweigh Helget’s speech interest in submitting an affidavit in ongoing civil litigation. Because Helget’s role required her to work closely with .her superiors and maintain confidential information, her disclosure of those confidences caused her superiors to lose trust in her, directly undermining the Department’s operations. We also reject Helget’s attempt to collaterally attack the district court’s order because the court entered summary judgment before ruling on her pending motion for spoliation sanctions. Helget forfeited this challenge because she failed to sufficiently raise the issue during" summary judgment briefing.

I. Background

Firma Helget was the administrative secretary for the Hays Police Department, a position she occupied for ten years before her termination in 2012. She joined the City in 1989, and during her time with the Department, she worked with multiple police chiefs and assistant police chiefs.

In her capacity as administrative secretary, Helget was tasked with “facilitating the smooth operation of the Department” and “act[ing] as ‘a general information center.” Supp. App. 141. This required Helget to work closely with the police chief and assistant police chief and to maintain the Department’s confidential records and files. The City’s personnel manual specifically informs its employees that “disclosing confidential records or information unless directed to do so by a department head or supervisor” is cause for termination. App. 4 (Memorandum and Opinion, Mar. 19, 2015, Doc. 211) (quoting personnel manual).

One of Helget’s official duties was to act as the Department’s purchasing agent. In November 2010, she prepared a list of officers who were due new ballistic vests in the upcoming year—ballistic vests have a limited life and are replaced approximately every five years. Helget presented the list to then-Assistant Police Chief Philip Hartsfield, who instructed her to remove Officer Blaine Dryden from the list. This was the first time Helget had been told to remove an officer from a ballistic vest ordering list. She removed Dryden’s name and, on December 6, 2010, she ordered the vests as Hartsfield instructed.

One month later, on January 7, 2011, the City terminated Dryden, citing an incident that occurred in late December 2010, where Dryden was accused of unprofessional and inappropriate conduct at a court hearing. Dryden, however, maintained the City wrongfully terminated him because of his union-organizing activities, and subsequently sued the City under 42 U.S.C. § 1983. In challenging the City’s reason for his termination, Dryden alleged the City had decided not to order him a new ballistic vest in early December 2010, prior to the incident the Department used to justify his termination.

During summary judgment briefing in the Dryden federal court case, Dryden’s counsel contacted Helget regarding the case, and she agreed to execute an affidavit in support of the litigation. In the affidavit, Helget stated:

(1) She had been instructed to remove Dryden from the ballistic vest ordering list in early December 2010;
(2) Dryden was known to be an active member in the local Fraternal Order of Police chapter; and
(3) Former Police Chief James Braun had cautioned her about speaking with Dryden when she pursued her own grievance against the Department.

App. 40-41. Helget did not consult with anyone at the City before disclosing this information. And, her affidavit was later used as an exhibit to Dryden’s opposition to the City’s motion for summary judgment.

On May 1, 2012—after Helget executed the affidavit, but before City officials were aware of it—Police Chief Donald Scheibler and Assistant Police Chief Brian Dawson met with Helget to discuss her job performance. They counseled her about her excessive personal internet use during business hours and about her demeanor with her coworkers. The meeting was recorded and included in Helget’s personnel file. Several days later, on May 9, 2012, Helget informed Scheibler she was considering leaving the Department; she had in fact applied for an administrative assistant position at a local university.

On May 10, Scheibler, for the first time, learned about Helget’s affidavit from the City’s legal counsel in the Dryden litigation. City officials sent multiple emails to one another about how to handle the situation. In particular, Human Resource Coordinator Erin Giebler and Assistant City Manager Paul Briseno exchanged emails regarding whether the City could discipline or terminate Helget for signing the affidavit. As a result of Helget’s statements, Scheibler testified he. no longer trusted Helget with confidential information: “I think she intentionally took that confidential information and released it ... just deteriorating any hope for any trust between the person that she was supposed to help run the police department;” App. 9 (Memorandum and Opinion, Mar. 19, 2015, Doc. 211) (quoting deposition testimony).

Accordingly, on May 14, Scheibler presented a memorandum to City Manager Toby Dougherty recommending the City terminate Helget. The list of reasons for termination included: (1) lack of communication and interaction with command staff; (2) negative interactions with staff; (3) violations of the City’s personal-internet-use policy; and (4) disclosing confidential information in the Dryden litigation. Scheibler terminated Helget two days later.

II. Analysis

Helget argues the district court erred in granting summary judgment to the defendants. She contends the court erred in finding her speech was not entitled to First Amendment protection as a matter of law and in granting qualified immunity to Dougherty and Scheibler.

Although Helget’s challenges are .mostly evidentiary in form, we have “an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” Rankin v. McPherson, 483 U.S. 378, 386 n.9, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) (citation omitted); see also Lytle v. City of Haysville, 138 F.3d 857, 862 (10th Cir. 1998). We conclude the district court did not err in "granting summary judgment in favor of the defendants on Helget’s First Amendment retaliation claims; therefore, we do not reach her challenge to the district court’s qualified immunity finding.

A. Helget’s First Amendment Retaliation Claims

Helget asserted three First Amendment claims, all singularly directed at the City’s purported retaliation for her support of Dryden’s federal court litigation. Specifically, she claims the City terminated her employment in retaliation for her exercising her First Amendment right to testify truthfully, to speak out on a matter of public concern, and for conspiring to violate her First Amendment rights. Because all of Helget’s First Amendment claims are interrelated, we address them as one.

We review the district court’s grant of summary judgment de novo, applying the same legal standards the district court applied under Federal Rule of Civil Procedure 56(a). Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014). “The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled .to. judgment as a matter of law.” Fed. R. Civ. P. 56(a),

A public employer may not “discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech.” Rankin, 483 U.S. at 383, 107 S.Ct. 2891; see also Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). “Speech by citizens on matters of public concern lies at the heart of the First Amendment,” and “public employees do not renounce their citizenship when they accept employment.” Lane v. Franks, — U.S. —, 134 S.Ct. 2369, 2377, 189 L.Ed.2d 312 (2014). Therefore, the Supreme Court “has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights.” Id.

Nevertheless, a public employer must be able to control the operations of its workplace. Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Lytle, 138 F.3d at 863. “Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.” Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Thus, “the First Amendment protection of a public employee’s speech depends on a careful balance ‘between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” Lane, 134 S.Ct. at 2374 (quoting Pickering, 391 U.S. at 568, 88 S.Ct. 1731).

The familiar Garcetti/Pickering test governs opr review of Helget’s First Amendment retaliation claims. The test consists of five steps:

(1) whether the speech was made pursuant to an employee’s official duties; (2) whether the speech was on a matter of public concern; (3) whether the government’s interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiffs free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct.

Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014) (quoting Dixon, v. Kirkpat rick, 553 F.3d 1294, 1302 (10th Cir. 2009)). The first three steps concern questions of law for the courts, and the last two concern questions of fact. Id.

The district court focused its inquiry on the second and third steps. The parties agreed Helget’s speech was not in response to her official duties, and the court did not reach the fourth and fifth steps. Because Helget’s claims can be resolved at the third step of the Garcetti/Pickering test, we confíne our review to that step. See Trant, 754 F.3d at 1160.

The district court, in weighing the City’s interests as an employer against Helget’s interest in her speech, found the balance weighed in favor of the City. The court characterized Helget’s interest as weak because, for one, Helget did not claim to know why City officials removed Dryden from the ballistic vest ordering list. Comparatively, the court reasoned the City had a strong operational interest in maintaining trust among its employees. And Hel-get’s position as administrative secretary was “unique” because maintaining the Department’s confidences—and the trust resulting from that responsibility—was paramount to her effectively performing her duties. .

When a public employee speaks as a citizen on a matter of public concern, a court next examines'“whether the government had ‘an adequate justification for treating the employee differently from any other member of the public’ based on the government’s needs as an employer.” Lane, 134 S.Ct. at 2380 (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. 1951). “The only public employer interest that outweighs the employee’s free speech interest is ‘avoiding direct disruption, by the speech itself, of the public employer’s internal operations and employment relationships.’” Trant, 754 F.3d at 1166 (citation omitted).

In balancing the interests, we do not consider the employee’s speech in a “vacuum.” Rankin, 483 U.S. at 388, 107 S.Ct. 2891. Rather, “the manner, time, and place of the employee’s expression are relevant.” Id. Pertinent factors to consider include whether the statement: “[1] impairs discipline by superiors or harmony among coworkers, [2] has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or [3] impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” Id.

We have stated “the primary consideration is the impact of the disputed speech ‘on the effective functioning of the public employer’s enterprise.’” Lytle, 138 F,3d at 868 (quoting Rankin, 483 U.S. at 388, 107 S.Ct. 2891). A public employer need not show that the employee’s speech in fact disrupted internal operations and employment relationships, Trant, 754 F.3d at 1166. Instead, “[i]t need[ ] only to establish that the speech could potentially become so disruptive to the [employer’s] operations as to outweigh [the employee’s] interest in the speech.” Id., Rock v. Levinski, 791 F.3d 1215, 1220 (10th Cir. 2015) (“The employer need not await the detrimental impact before taking action. Preemptive steps to avoid such an impact can be acceptable, and we ‘will generally defer to a public employer’s reasonable predictions of disruption(citation omitted)).

A public employer’s burden to justify its restriction on speech “increases in proportion to the value of that speech in the public debate.” Curtis v. Okla. City Pub. Sch. Bd. of Educ. 147 F.3d 1200, 1213 (10th Cir. 1998) (citation omitted); see also Lane, 134 S.Ct. at 2380 (“We have also cautioned, however, that ‘a stronger showing [of government interests] may be necessary if the employee’s speech more substantially involve[s] matters of public concern.’ ” (quoting Connick, 461 U.S. at 152, 103 S.Ct. 1684)). And where the employee is acting as a whistleblower, exposing government corruption, his or her interest is entitled to greater weight. Lytle, 138 F.3d at 865. When an employee refuses to take advantage of internal channels, however—i.e., by airing grievances outside the department—an employee’s interest may be diminished when the chosen form of speech is “unnecessarily disruptive.” Id. at 865.

We begin our analysis -with,the City’s interests. We have long recognized that loyalty and confidence among employees is especially important in a law enforcement setting. See Worrell v. Henry, 219 F.3d 1197, 1206 (10th Cir. 2000); Moore v. City of Wynnewood, 57 F.3d 924, 934 (10th Cir. 1995) (The “need [for workplace harmony] is particularly acute in the context of law enforcement, where there is a ‘heightened interest ... in maintaining discipline and harmony among employees.’ ” (citation omitted)). And “[t]hese concerns are even greater in a relatively small department, where a minor disturbance in morale might loom large.” Lytle, 138 F.3d at 867; see also Moore, 57 F.3d at 934.

Helget’s position as administrative secretary required her to work closely-with Police Chief Scheibler and Assistant Police Chief Dawson. The position also required her to handle confidential information in administering- her duties. Indeed, the job description- explicitly states “[t]his employee should possess ... the ability to maintain confidentiality” and that One essential function is “máintaiñ[ing]confidential records and files.” App. 4 (Memorandum and Opinion, Mar. 19, 2015, Doc. 211) (quoting personnel manual). Thus, ensuring the protection of the - Department’s confidences was crucial to Helget’s job performance, and any diminution in trust by Scheibler or Dawson because of her inability to maintain confidences could have affected her working relationship with her direct supervisors.

Scheibler testified that after Hel-get disclosed confidential information in her affidavit, he no longer trusted her. In other words, he questioned whether he could convey confidential information to her related to departmental matters, an essential part of her role with the Department. Scheibler’s concern also necessarily implicated Helget’s loyalty to the Department—namely, whether she was devoted to her supervisors and their obligation to manage the Department, or whether her allegiance was to others outside the Department. Thus, Scheibler’s testimony supports the finding that Helget’s speech had a detrimental impact on her working relationship with her superiors, which required personal trust. and loyalty. See Rankin, 483 U.S. at 388, 107 S.Ct. 2891.

The loss of trust in Helget would have also affected the regular operation of the Department and her ability to perform her duties. See id.. Helget’s role required her to “facilitate the smooth operation of the Department” and “act[ ] as a general information center.” Supp. App. 141. Scheibler and Dawson relied on Helget for an array of tasks, many of which required handling confidential matters. Like many administrative secretaries, Helget was effectively the Department’s nerve center or liaison between the Department’s decision makers and others in the Department. Had Schei-bler and Dawson been compelled to work with Helget after learning she revealed confidential information'—notably, she was terminated six days after Scheibler learned of the affidavit—the strained relationship would have certainly interfered with the regular operation of the Department. And, if Scheibler refused to convey confidential information to Helget, it would have impeded her ability to perform the duties essential to her job.

Thus, based on the facts, the City’s operational interests as a public employer are strong.

On the other side of the ledger is Hel-get’s interest in her speech. Helget maintains her interest is significant because her statements disclosed misconduct by the City. In particular, in the context of the Dryden litigation, Helget’s sworn affidavit placed into question the City’s.stated reason for terminating Dryden. The City claimed it terminated Dryden because of an incident occurring in late December 2010. But Helget averred that, as early as December 6, 2010, the City had decided not to order Dryden a new ballistic vest— presumably because he would not be around to wear it.

But Helget admits that at the time she signed the affidavit she did not know why Department officials removed Dryden from the ballistic vest ordering list. And a plain reading of the affidavit does not reveal any improprieties or misconduct by the City. Specific to the'Dryden litigation, Helget simply attested to the fact that Dryden was generally known to be active in the local Fraternal Order of Police chapter and that she was instructed to remove Dryden from the ballistic vest ordering list in early December 2010. Thus, it cannot be said with any certainty that Helget was disclosing government misconduct.

Even further, the manner in which Hel-get elected to air her discourse about Dryden’s termination minimizes her claimed interest in the speech. She signed an affidavit in support of a party who was adverse to the City in pending litigation. Before taking that step, Helget did not raise the issue with her superiors, let alone inform them after executing the affidavit. She had several opportunities to address the issue with Scheibler and Dawson, who, importantly, were not in command when the Dryden termination decision was made. This fact intensified the disruptive impact of Helget’s disclosure. We therefore conclude Helget’s chosen form of speech was disruptive, see Lytle, 138 F.3d at 865, and that her interest in making the statements should be discounted accordingly.

Considering the circumstances as a whole, we agree with the district court that the City’s strong interests as a public employer outweigh Helget’s interest in supplying an affidavit in a former employee’s litigation.

* * *

Because the balance of interests weigh in favor of the City under the Pickering balancing step, Helget cannot satisfy the Garcetti/Pickering test. Thus, the district court did not err in concluding that Helget’s speech was not entitled to protection under the First Amendment. We therefore hold the district court did not err in granting summary judgment in favor of the defendants on Helget’s First Amendment retaliation claims.

B. Qualified Immunity for Dougherty and Scheibler

Because we conclude the district court did not err in granting summary judgment in favor of Dougherty and Scheibler on Helget’s First Amendment retaliation claims, there is no constitutional violation to satisfy the first Saucier prong. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Thus, we need not reach Helget’s additional arguments on qualified immunity.

C. Helget’s Motion for Spoliation Sanctions

Helget lastly argues the district court improperly granted summary judgment before resolving her pending motion for spoliation sanctions.

By way of background, after Helget’s terihination, her counsel sent a litigation-hold letter to the defendants demanding they preserve relevant electronic documents and communications. Suspecting the City had not fully complied with the discovery request, Helget asked the court to order production of documents and sanctions. The court found “potential” spoliation issues with the internet-usage and email history of certain custodians and ordered the City to have the information forensically restored. Helget later filed a second motion for spoliation sanctions, but the court never acted on the motion.

While the sanctions motion was pending, all parties moved for summary judgment. In opposing the City’s motion, Helget made scant reference to her outstanding motion for spoliation sanctions and how its disposition might influence summary judgment. The only reference in over 100 pages of briefing is a vague comment in the introduction of Helget’s opposition to the City’s motion: “[T]he documentary evidence that remains after the City’s well-documented spoliation and failure to put a litigation hold in place demonstrates, at a minimum, that there are disputed issues of material fact which necessitates a trial.” App. 304. Nevertheless, Helget now asserts the district court erred by failing to rule on her second motion for spoliation sanctions before disposing of her claims on summary judgment.

We generally review a district court’s ruling on a motion for spoliation sanctions for an abuse of discretion. Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007). District courts have “substantial weaponry” in their arsenal to shape the appropriate relief for a party’s spoliation of evidence. See Turner v. Pub. Serv. Co. of Colo., 563 F,3d 1136, 1149 (10th Cir. 2009); see also Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (“[A] district court has broad discretion in choosing an appropriate .sanction for spoliation, ‘the applicable sanction should be molded to. serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.’ ” (citation omitted)). Among the options, a court may strike witnesses, 103 Inv’rs I, L.P. v. Square D Co., 470 F.3d 985, 988 (10th Cir. 2006); issue an adverse inference, Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1219-20 (10th Cir. 2008); exclude evidence, see Jordan F. Miller Corp. v. Mid-Continent Aircraft Serv., Inc., 139 F.3d 912 (10th Cir. 1998) (unpublished); or, in extreme circumstances, dismiss a party’s claims, id.

But, here, Helget forfeited her right to seek refuge in her undecided motion for spoliation sanctions by failing to raise the argument in any meaningful way in opposing summary judgment. Although not directly on point, the precepts of Federal Rule of Civil Procedure 56(d) are instructive. Rule 56(d) allows a nonmovant to show by affidavit or declaration that, for a specified reason, it cannot present facts essential to justify opposition to a motion for summary judgment. That is, it provides a means for a nonmovant to “ask the court to refrain from acting on the summary judgment request until additional discovery can be conducted.” Been v. O.K. Indus., Inc., 495 F.3d 1217, 1235 (10th Cir. 2007). Thus, Rule 56(d) serves a noticing function that “safeguards against an improvident or premature grant of summary judgment.” See 10B Charles Alan Wright, Arthur R. Miller et al., Federal Practice & Procedure § 2740 (3d ed. & Sept. 2016 Update) (footnote omitted). A nonmovant failing to raise the evidentiary impediments preventing it from meeting its summary judgment burden acts at its own peril. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998).

Hélget balks at the relevancy of Rule 56(d) because additional discovery or an extension of time would have been futile. But the purpose of Rule 56(d) is broader than simply postponing a ruling while the parties conduct additional discovery. It also serves a noticing function by alerting the court that a summary judgment ruling might be premature. And the Federal Rules and our precedents discussed above place added emphasis on a nonmovant’s duty to inform the court when it cannot present facts. sufficient to meet its summary judgment burden. Although we stop short of holding Helget had a duty to file a Rule 56(d) affidavit to preserve the issue, she did have some obligation to alert the district court that her pending spoliation motion could affect the summary judgment motions. In over 100 pages of briefing on summary' judgment, Helget made a single, passing reference to spoliation. We cannot agree that this vague reference is sufficient to allow Helget to collaterally attack the district court’s order on summary judgment by pointing to the court’s failure to first rule on her spoliation sanctions motion. We acknowledge that as a matter of best practices, the district court should have ruled on the motion before, or in the process of, deciding summary judgment. But without guidance from the party seeking sanctions on how spoliation could affect pending summary judgment issues, it is difficult to see how the district court abused its discretion in proceeding the way it did.

We therefore reject Helget’s argument that the district court committed reversible error by not ruling on her motion for spoliation sanctions before disposing of her claims on summary judgment.

III. Conclusion

In sum, Helget cannot point to any error in the district court’s order granting summary judgment in favor of the defendants on her First Amendment retaliation claims. We therefore AFFIRM.

TYMKOVICH, Chief Judge,

concurring.

I write separately because I would reject an additional argument raised by Hel-get: that her voluntary affidavit in the Dryden litigation is per se a matter, of public concern under the Garcetti/Picker-ing test because of its form and context. The district court thoroughly examined whether Helget’s speech was on a matter of public concern, but ultimately assumed, without deciding, the step was satisfied. The court did, however, reject Helget’s argument that her speech was per se a matter of public concern because it took the form and context Of a sworn affidavit. But Helget maintains that her affidavit in the Dryden litigation automatically satisfies the public concern requirement as a matter of law.

Speech involves a matter of public concern when it relates to matters of “ ‘political, social, or other concern to the community,’ or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’ ” Lane, 134 S.Ct. at 2380 (quoting Snyder v. Phelps, 562 U.S. 443, 453, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011)). The court’s inquiry considers the “content, form, and context” of the given statements. Id. ' '

The “crux of the public concern content inquiry” is “what is actually said on the topic.” Wren v. Spurlock, 798 F.2d 1313, 1317 n.1 (10th Cir. 1986). Statements revealing government misconduct or impropriety generally involve matters of public concern. Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1205 (10th Cir. 2007). But “speech relating to internal personnel 'disputes and working conditions ordinarily will not be viewed as addressing matters of public concern.” Morris v. City of Colorado Springs, 666 F.3d 654, 661 (10th Cir. 2012) (alteration omitted) (citation omitted). In other words, “speech that simply airs ‘grievances of a purely personal nature’ typically does not involve matters of public concern.” Brammer-Hoelter, 492 F.3d at 1205 (quoting Connick, 461 U.S. at 147-48, 103 S.Ct. 1684).

As to form and context, the Supreme Court recently held that sworn testimony in a judicial proceeding “fortifies” a matter-of-public-eoncern finding. Lane, 134 S.Ct. at 2380: The speech at issue in Lane was the petitioner’s testimony under subpoena at the trial of a public official for corruption and misuse of state funds. Id. at 2375. The Court observed, “Unlike speech in other contexts, testimony under oath has the formality and gravity necessary to remind the witness' that his or her statements will be the basis for official governmental action, action that often affects the rights and liberties of others.” Id. (quoting United States v. Alvarez, 567 U.S. 709, 132 S.Ct. 2537, 2546, 183 L.Ed.2d 574 (2012) (plurality opinion)). But the Court stopped short of declaring that sworn testimony in a judicial proceeding is per se a matter of public concern.

Circuit courts are unsettled on whether trial testimony is per se a matter of public concern. This court surveyed the legal landscape in a recent case, but refused to enter the fray, observing:

There is a debate on whether trial testimony is per se a matter of public concern. .,. Some [circuits] hold that any trial testimony is a matter of public concern. See, e.g., Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1578 (5th Cir. 1989) (“When an employee testifies before an official government adjudicatory or fact-finding body he speaks in a context that is inherently of public concern.”); Latessa v. N.J. Racing Comm’n, 113 F.3d 1313, 1319 (3d Cir. 1997) (same). Some have not gone so far. See, e.g., Wright v. Ill. Dept. of Children & Family Servs., 40 F.3d 1492, 1505 (7th Cir. 1994); Padilla v. S. Harrison R-II Sch. Dist., 181 F.3d 992, 996-97 (8th Cir. 1999). We do not enter the debate....

Deutsch v. Jordan, 618 F.3d 1093, 1099 n.1 (10th Cir. 2010). Circuits advancing a per se rule point out that all citizens owe an independent duty to society to testify truthfully in court proceedings, which may be impeded if an employee fears retaliation and reprisal by a public employer as a result of his or her testimony. Reilly v. City of Atlantic City, 532 F.3d 216, 229 (3d Cir. 2008); see also Catletti ex rel. Estate of Catletti v. Rampe, 334 F.3d 225, 229-30 (2d Cir. 2003) (“In this case .the context of Catletti’s speech—testimony offered at trial—is significant.... The paramount importance of judicial truth-seeking means that truthful trial testimony is almost always of public concern.”).

Moreover, in the context of a civil ease, the justification offered by the per-se-rule circuits is of greater weight when the testimony is compelled by a valid subpoena. See Herts v. Smith, 345 F.3d 581, 586 (8th Cir. 2003) (“Subpoenaed testimony on a matter of public concern in ongoing litigation ... can hardly be characterized as defeating the interests of the state in efficient public service through its employees.”); Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1070 (9th Cir. 2012) (discussing subpoenaed trial testimony and subpoenaed deposition testimony). But see Reilly, 532 F.3d at 230 (“We concluded that ‘there is a compelling reason to find Green’s appearance to be a matter of public concern regardless of its voluntary nature.’ ” (emphasis added) (quoting Green v. Philadelphia Hous. Auth., 105 F.3d 882, 887 (3d Cir. 1997))).

But Helget’s speech here differs in two material ways. First, her speech is in the form of an affidavit, rather than trial testimony. Although her statements are in writing and sworn to under oath, this form of speech is one step removed from the adversarial, truth-seeking process that ensures a certain level of reliability. Second, her speech was completely voluntary. In other words, this is not an instance in which Helget had been subpoenaed to testify and, as a result, subjected to a Catch-22 situation—either testify truthfully consistent with her duty to the court and society, or risk retaliation and reprisal by the City. See Johnston, 869 F.2d at 1578 (“If employers were free to retaliate against employees who provide truthful, but damaging, testimony about their employers, they would force the employees to make a difficult choice. Employees either could testify truthfully and lose their jobs or could he to the tribunal and protect their job security.”). Thus, even if the court were to recognize a per se rule as to the form and context of given speech, which this court and the Supreme Court have not done, Helget’s voluntary sworn affidavit is not of the form and context that would necessarily compel per se protection.

Importantly, this conclusion would not foreclose a finding that Helget’s speech is on a matter of public concern because of its content. Consistent with our precedent, “Statements revealing official impropriety usually involve matters of public concern.” Brammer-Hoelter, 492 F.3d at 1205. Thus, if Helget’s speech reveals impropriety or misconduct by the City, the fact that her statements were incorporated into a voluntary sworn affidavit does not discount the inevitable finding that her speech is on a matter of public concern. So in that regard, my view is a narrow one—namely, that speech contained in a voluntary sworn affidavit in a civil case is not automatically a matter of public concern. It depends on content, form, and context of the speech.

      . Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

      . Helget’s two speech claims are functionally equivalent, as they are both directed at her First Amendment retaliation allegations. In other words, they are part of the same overarching First Amendment retaliation claim. And-her Jast claim, conspiracy to violate her First Amendment rights, necessarily requires Helget to first show a deprivation of her First Amendment rights.

      . We reject Helget’s argument that the -district court misapplied the summary judgment standard by wrongfully accepting Scheibler’s testimony as credible. While it is true that "[o]n summary judgment, a district court may not weigh the credibility of the witnesses,” Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir, 2008), this ordinarily means "the court may not grant summary judgment based on its own perception that one witness is more credible than another,” id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). But where a nonmoving parly (who has the burden of persuasion at trial) fails to provide admissible evidence rebutting testimony offered by the moving party, the question is not one of credibility, but rather the absence of evidence creating a triable issue, of fact. And in that regard, Helget "must do more than merely assert that the jury might’ disbelieve the testimony of [Scheibler]; [s]he must present h[er] own áffirmative evidence of those facts which are contradicted by the interested testimony.” See Wood v. Handy & Harman Co., 318 Fed.Appx. 602, 606-07 (10th Cir. 2008) (unpublished) (quoting Liberty Lobby, 477 U.S. at 256-57, 106 S.Ct. 2505); see also Nat’l Am. Ins. Co. v. Am. Re-Ins. Co., 358 F.3d 736, 742 (10th Cir. 2004) ("Standing alone, attacks oh the credibility of evidence offered by a summary judgment movant do not warrant denial of a summary judgment motion.”). Here, Helget failed to offer admissible evidence contradicting Scheibler’s testimony, Even further, it seems obvious that City officials would have lost trust in Helget after she unilaterally revealed the Department’s confidences to an adverse party in pending litigation against the City.

      . To the extent Helget argues the district court misapplied the summary judgment standard by wrongfully presuming Helget's speech caused workplace disharmony, we reject it. Our precedent malees clear that "actual” disruption is not required. Trant, 754 F.3d at 1166 ("[T]he Board was not required to show that the speech had in fact disrupted the OCME’s internal operations.... It needed only to establish that the speech could potentially become so disruptive_”). And, as we have discussed, the circumstances of Helget's speech could have (and most likely did) cause disharmony between her and her superiors.

      . Relatedly, Helget filed a separate motion under Federal Rule of Civil Procedure 37, alleging discovery violations by the defendants. The court granted the motion in part, ordering the City to produce certain IT service logs.

      . Federal courts possess the inherent powers necessary "to manage their own affairs so as to achieve the orderly and expeditious disposition of cases,” including imposing appropriate sanctions. Chambers v. NASCO, Inc., 501 U.S. 32, 43, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). Although this circuit has not directly spoken to the issue, other circuits have held that sanctions for the spoliation of evidence is a matter of federal law. Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009) (en banc) (listing the Second, Fourth, Fifth, and Ninth Circuits); Sherman v. Rinchem Co., 687 F.3d 996, 1006 (8th Cir. 2012); Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005); see also 22 Kenneth W. Graham, Jr., Federal Practice & Procedure § 5178.3 (2d ed. & Apr. 2016 Update). But see Rowe v. Albertsons, Inc., 116 Fed.Appx. 171 (10th Cir. 2004) (unpublished) (applying Texas state law to spoliation sanctions issue). This particular issue is not dispositive here.

      . The 2015 revisions to Federal Rule of Civil Procedure 37(e) provide courts further guidance on issuing sanctions for destroying or failing to preserve electronically stored information (ESI). The Rule instructs courts to "order measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). But where a party acts with the intent to deprive another from using the ESI in litigation, a court may “presume that the lost information is unfavorable to the party,” issue an adverse-inference instruction, or "dismiss the action or enter a default judgment.” Fed. R. Civ, P. 37(e)(2)(A)-(C).

      . And because Helget "hasn't even attempted to show how [her] new legal theory satisfies the plain error standard,” it "marks the end of the road for an argument for reversal not first presented to the district court.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131-32 (10th Cir. 2011).

      . We also reject Helget’s attempt to conform her requested sanctions to the current posture of the case. Helget argues that where an opposing party intentionally destroys evidence without justification, "that 'destruction of evidence’ ... 'is adequate to defeat summary judgment.' ” Aplt. Br. at 27 (quoting Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107, (2d Cir. 2001)); see also Reply at 9-10. Helget has failed to cite, and pur own research has not revealed, any case from this circuit supporting such proposition. But more detrimentally, she raises this form of sanction for the first time on appeal.

      .We also DENY the defendants' request to dismiss Helget's appeal for filing an untimely opening brief. Aple. Br. at 3. Helget filed her brief within ten days of the letter order dated October 20, 2015, as instructed.

      . In Worrell v. Henry, the court agreed generally “that truthful testimony is protected by the First Amendment and that a government employee may not be fired or subjected to other adverse action as a result of such testimony.” 219 F.3d 1197, 1204-05 (10th Cir. 2000) (collecting cases from other circuits). But in Worrell, the parties agreed the testimony at issue was on a matter of public concern.
        Id. at 1206. Thus, the court did not address whether the form and context of the testimony, standing alone, compelled a finding that the plaintiffs speech was a matter of public concern.

      . The Ninth Circuit has taken this a step further. In Alpha Energy Savers, Inc. v. Hansen, the court refused to adopt a per se rule, but held that either the content or context of an employee’s testimony in a judicial proceeding could satisfy the matter-of-public-concern inquiry. 381 F.3d 917, 926-27 (9th Cir. 2004). Because judicial proceedings that expose “potential or actual discrimination, corruption, or other wrongful conduct' by [the] government” are inherently matters of public concern, an employee’s testimony is a matter of public concern when it is about "corruption, wrongdoing, misconduct, wastefulness, or inefficiency by other government employees.” Id. at 925-26. Such position would be unnecessary here because our precedents concerning the content of given speech sufficiently account for this type of speech.


author: McHUGH, Circuit Judge.

text:
    FRONT RANGE EQUINE RESCUE; The Humane Society of the United States; Marin Humane Society; Horses for Life Foundation; Return to Freedom; Ramona Cordova; Krystle Smith; Cassie Gross; Deborah Trahan; Barbara Sink; Chief David Bald Eagle; Chief Arvol Looking Horse; Tanya Littlewolf; Roxanne Talltree-Douglas; Foundation to Protect New Mexico Wildlife; Sandy Schaefer, Plaintiffs-Appellees, and State of New Mexico, Intervenor Plaintiff-Appellee, v. Tom VILSACK, Secretary, United States Department of Agriculture; Elizabeth A. Hagen, Under Secretary for Food Safety, United States Department of Agriculture; Alfred A. Almanza, Administrator, Food Safety and Inspection Services, United States Department of Agriculture, Defendants, Responsible Transportation, LLC; Confederated Tribes and Bands of the Yakama Nation; Rains Natural Meats; Chevaline, LLC; International Equine Business Association; New Mexico Cattlegrowers’ Association; South Dakota Stockgrowers Association; Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America; Marcy Britton; Bill Wood; Jan Wood; Leroy Wetz; Shirley Wetz; Doug Johnson; Judy Johnson; Kujyukuri, Ltd; United Horsemen; Scenic View Ranch, Intervenors Defendants, and Valley Meat Company, LLC, Intervenor Defendant-Appellant.
    No. 16-2054
    United States Court of Appeals, Tenth Circuit.
    Filed January 4, 2017

      A. Blair Dunn (Dori E. Richards with her on the briefs), Western Agriculture, Resource and Business Advocates, LLP, Albuquerque, New Mexico for Intervenor Defendant-Appellant.
    Adam Diederich, Schiff Hardin, LLP, Chicago, Illinois (Bruce A. Wagman, Schiff Hardin LLP, San Francisco, California; Samuel C. Wolf, Jones, Snead, Wertheim & Clifford, P.A, Santa Fe, New Mexico, and Ari Biernoff, Office of the Attorney General, Santa Fe, New Mexico, with him on the briefs) for Plaintiffs-Appellees and Intervenor Plaintiff-Appellee.
    Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
   McHUGH, Circuit Judge.

Valley Meat Company, LLC appeals the district court’s denial of its motion to collect on an injunction bond. Exercising jurisdiction under 28 U.S.C, § 1291, we affirm.

I. BACKGROUND

The Food Safety Inspection Service (FSIS), a branch of the United States Department of Agriculture (USDA), is responsible for inspecting equine slaughterhouses, and a grant of inspection is required for the commercial slaughter of horses, mules, and other equines for human consumption. 21 U.S.C. § 603(a). Between fiscal years 2006 and 2011, Congress prohibited the use of funds for inspection, thereby preventing commercial equine slaughter. In fiscal year 2012, Congress lifted the ban on funding and FSIS received several applications for inspection. The agency issued grants of inspection to two commercial equine slaughter facilities: Valley Meat Company, LLC and Responsible Transportation, LLC.

In response, Front Range Equine Rescue, the Humane Society of the United States, and several other individuals and organizations (collectively, “Front Range”) sued officials of the USDA (“Federal Defendants”), seeking a declaration that grants of inspection generally violated the National Environmental Policy Act and requesting that ’the court set aside the specific grants of inspection to Valley Meat and Responsible Transportation. Front Range also moved to enjoin the Federal Defendants from authorizing equine slaughter during the pendency of the claims. Subsequently, Valley Meat and Responsible Transportation each filed motions to intervene, which the district court granted.

The district court then granted Front Range’s motion for a temporary restraining order (TRO), prohibiting the Federal Defendants from sending inspectors to the equine slaughterhouses of, or otherwise providing equine inspection services to, Valley Meat and Responsible Transportation. The court additionally sua sponte enjoined Valley Meat and Responsible Transportation from engaging in commercial equine slaughter. Finally, the court ordered Front Range to post injunction bonds of $435,000 for Valley Meat and $60,000 for Responsible Transportation, “for the time period August 5, 2013 through September 1, 2013.” Twelve days later, Front Range filed a motion to modify the TRO, an objection to the order requiring it to post an injunction bond, and a request for expedited review. Front Range claimed the injunction against Valley Meat and Responsible Transportation was invalid because Front Range had sued and sought relief from only the Federal Defendants. Without waiving this objection, Front Range posted the bond as ordered. Valley Meat opposed Front Range’s motion, arguing that it should be restrained and Front Range should be required to post the bond because an injunction against the Federal Defendants effectively also enjoins its operations.

The district court never ruled on Front Range’s motion, but on November 1, 2013, it denied Front Range’s request for a permanent injunction and dismissed the action. Front Range immediately appealed the decision to this court. In order to provide adequate time to consider the merits, we temporarily enjoined the Federal Defendants from sending inspectors but did not enjoin Valley Meat or Responsible Transportation.

We subsequently dismissed the appeal as moot in Front Range Equine Rescue v. Vilsack, 782 F.3d 565 (10th Cir. 2015) [hereinafter Front Range 7]. We first concluded the appeal was moot because Congress resumed its funding prohibition for equine inspections beginning in 2014, making it once again unlawful to engage in commercial equine slaughter for human consumption. Id. at 568. And second, we noted that while the appeal was pending, Valley Meat “decided to abandon all plans to slaughter equines and asked FSIS to withdraw its grant of inspection.” Id.

Upon concluding that the matter was moot, we vacated the district court’s order denying a permanent injunction, “based on the underlying equitable principle that a party should not have to bear the consequences of an adverse ruling when frustrated by the vagaries of the circumstances.” Id. at 571 (alterations and internal quotation marks omitted). And the “vagaries of the circumstances” we identified here were unilateral actions taken by Valley Meat and Congress, not any actions taken by Front Range.

Valley Meat and Responsible Transportation then filed a motion in the district court to recover the injunction bond. A magistrate judge recommended that the motion be denied, and'the district court adopted the magistrate’s recommendation in full. Valley Meat now appeals the denial of damages on the injunction bond.

II. DISCUSSION

As a prerequisite to the issuance of a preliminary injunction, Federal Rule of Civil Procedure 65(c) requires the moving party to post a security bond “to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). We review a district court’s decision to grant or deny damages on a bond for abuse of discretion, which occurs when the court “(1) enters ‘an arbitrary, capricious, whimsical, or manifestly unreasonable judgment’ or (2) applies the wrong legal standard.” Sprint Nextel Corp. v. Middle Man, Inc., 822 F.3d 524, 535 (10th Cir. 2016) (citation omitted).

Here the parties dispute what the correct legal standard is. Front Range cites Tenth Circuit precedent, which holds that “the decision whether to award damages, and the extent thereof, is in the discretion of the district court and is based upon considerations of equity and justice.” Kansas ex rel. Stephan v. Adams, 705 F.2d 1267, 1269 (10th Cir. 1983); see also Sierra Club v. Hodel, 848 F.2d 1068, 1097 (10th Cir. 1988); Monroe Div., Litton Bus. Sys., Inc. v. De Bari, 562 F.2d 30, 33 (10th Cir. 1977) (“Equity comes into play in determining whether there may be recovery and the amount thereof.”); Robson v. R & R Fur Co., 986 F.2d 1428, at *2 (10th Cir.1993) (unpublished) (“Following a determination that damages were suffered, the district court exercises its equity powers in deciding whether to award damages against the bond and in what amount.”).

Valley Meat cites to cases from other circuits that it contends apply a different standard of review for denial of recovery under a bond posted under Rule 65(c). See Coyne-Delany Co. v. Capital Dev. Bd. of State of Ill., 717 F.2d 385, 391 (7th Cir. 1983) (“[A] prevailing defendant is entitled to damages on the injunction bond unless there is a good reason for not requiring the plaintiff to pay in the particular case.”); Nat’l Kidney Patients Ass’n v. Sullivan, 958 F.2d 1127, 1134 (D.C. Cir. 1992) (“The preference for allowance of damages is a solid one; it justifies disallowance only where there is good reason.”).

However, neither the parties nor the district court relied on our earlier precedent in Atomic Oil Co. of Okl. v. Bardahl Oil Co., which severely constricts the scope of a district court’s discretion to deny recovery to a wrongfully enjoined party. 419 F.2d 1097 (10th Cir. 1969). There, a panel of this court noted that “the discretion of the trial court to refuse to award damages on an injunction bond in an appropriate case has been largely circumscribed since the existence of Rule 65(c) and its predecessor.” 419 F.2d at 1100. We further explained:

The manifest purpose of Rule 65(c), evidenced by its plain language, strongly contraindicates the proposition that the court which issues an injunction should have the power to foreclose recovery on the injunction bond, when such recovery devolves upon the substantive correctness of the determinations of the very same court. Rule 65(c) states in mandatory language that the giving of security is an absolute condition precedent to the issuance of a preliminary injunction. It imports no discretion to the trial court to mitigate or nullify that undertaking after the injunction has issued.

Id. at 1100-01 (emphasis added). The limits on a district court’s discretion under Atomic Oil appear to conflict with the broad discretion to award or deny damages “based upon considerations of equity and justice” outlined in Stephan. And in this circuit, “we are obligated to follow the earlier panel decision over the later one.” Hiller v. Okla. ex rel. Used Motor Vehicle & Parts Comm’n, 327 F.3d 1247, 1251 (10th Cir. 2003). Therefore, where there is a finding that a defendant has been wrongfully enjoined, there is a presumption of recovery and the district court’s discretion to deny damages is limited.

Here, the district court based its decision to deny Valley Meat’s motion to collect on three independent grounds: (1) there was never a finding that Valley Meat was wrongfully enjoined, nor did Valley Meat request such a finding; (2) Front Range never sued Valley Meat nor asked for it to be enjoined, rather the court restrained Valley Meat sua sponte; and (3) it would be inequitable to award damages where Front Range raised legitimate environmental concerns and litigated in good faith. Although the district court’s analysis goes beyond that sanctioned by Atomic Oil, we affirm because Atomic Oil’s presumption in favor of damages does not apply where there was never a finding of wrongful enjoinment.

A. There Is No Finding that Valley Meat Was Wrongfully Enjoined

Valley Meat argues it was wrongfully enjoined, and that even though this court vacated the district court’s denial of a permanent injunction, “a district court must retain jurisdiction'to award costs and damages from a bond despite the vitiating of the underlying suit.” In Atomic Oil Co. of Oklahoma v. Bardahl Oil Co., we recognized a defendant’s right to recover damages on an injunction bond. 419 F.2d 1097, 1101 (10th Cir, 1969). But a prerequisite to recovery is a finding that the defendant was wrongfully enjoined. See Fed. R. Civ. P. 65(c) (explaining the purpose of the bond is “to pay the costs and damages sustained by any party found to have been wrongfully enjoined”); Robson, 986 F.2d 1428, at *2, (“[T]o prevail in an action to recover on [an] injunction bond, [the defendant] must prove that the injunction was wrongful and that he did have the right to engage in the enterprises enjoined.”).

On appeal, Valley Meat argues it was wrongfully enjoined because it was a “prevailing party” after the district court denied a permanent injunction. But there has never been a ruling that Valley Meat was wrongfully enjoined. Although the district court denied a permanent injunction, we vacated that order. We did so after concluding the appeal was moot both because Valley Meat had withdrawn its application for inspection and because Congress had defunded FSIS equine inspections, thereby again prohibiting commercial equine slaughter in the United States. The purpose of vacating the order was to preclude it “from spawning any legal consequences,” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1132 (10th Cir. 2010). We accordingly reject Valley Meat’s suggestion that the district court’s order denying a permanent injunction can be relied upon to show wrongful enjoinment.

Valley Meat has also failed to point us to any place in the record where it sought a determination, from either the district court or this court, that it had been wrongfully restrained. Valley Meat instead focuses on the damages it claims to' have sustained from the injunction, to argue the district court improperly denied recovery. Valley Meat contends that “[i]ssuanee of the bond to compensate for [Valley Meat’s] damages is a collateral matter which the District Court continued to have jurisdiction to resolve.” And it points to the district court’s finding at the bond hearing that Valley Meat would “suffer harm and injury by virtue of'the temporary restraining order.... The amount of these damages and losses are ascertainable.” Even if Valley Meat did suffer damages as a result of the TRO, it cannot recover against the bond unless it first shows wrongful enjoinment. As discussed, it has failed to do so.

Accordingly, the district court did not abuse its discretion in denying recovery against the injunction bond because there was never a ruling that Valley Meat was wrongfully enjoined. This conclusion alone is enough to affirm the district court’s decision.

III. CONCLUSION

The district court did not abuse its discretion in concluding that Valley Meat could not collect damages where there had been no finding that it was’ wrongfully enjoined. We therefore AFFIRM the district court’s denial of Valley Meat’s motion to recover damages against the injunction bond.

      . A third facility, Rains Natural Meats, applied for inspection, but FSIS was not able to issue a grant of inspection before the initiation of this lawsuit.

      . Rains Natural Meats also intervened, but was not subject to the TRO.

      . Responsible Transportation does not join in the appeal.

      . Valley Meat mentions this case in its Opening Brief, but does so for an unrelated proposition.

      . The .district court found that while- Valley Meat “failed to profit from [its] investment in a controversial, high-risk, and ultimately evanescent business during the few months when it may otherwise have been permitted, the record is unclear regarding whether the Court’s TRO alone was responsible for this situation.... The record is also unclear regarding whether Valley Meat’s ... lost profits, even if proximately caused by the TRO, were as high as predicted.” ...