author: CHOY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Aaron Willie STAPLES, Defendant-Appellant.
    No. 95-30274.
    United States Court of Appeals, Ninth Circuit.
    Submitted May 8, 1996.

    Decided June 7, 1996.
    As Amended June 28, 1996.

      Robert M. Leen, Seattle, Washington, for defendant-appellant.
    Angelo J. Calfo, Assistant United States Attorney, Seattle, Washington, for plaintiffappellee.
    Before: LAY, CHOY, and LEAVY, Circuit Judges.

       The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4.

       Honorable Donald P. Lay, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.

   CHOY, Circuit Judge:

Aaron Willie Staples appeals his guilty plea conviction of possession of a firearm in connection with a drag trafficking crime in violation of 18 U.S.C. § 924(e). We affirm.

Factual and Procedural Background

On February 1, 1994, undercover police officers purchased cocaine from John Matthews at a local bar. During the transaction, Matthews took money from an officer, went to Staples’ car, and returned with the cocaine. The police then arrested Staples and searched his ear. In the glove compartment the police found a loaded .40 caliber semiautomatic pistol.

On January 15, 1995, Staples was charged with using and carrying a firearm while distributing cocaine in violation of 18 U.S.C. § 924. On March 7, 1995, he pled guilty. Before sentencing, Staples moved unsuccessfully to dismiss the indictment and vacate the plea on the basis of United States v. Lopez, — U.S. -, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Staples was sentenced to five years imprisonment on August 11, 1995. Staples timely appeals.

Analysis

I. 18 U.S.C. § 924(c)(1) does not exceed Congress’ authority under the Commerce Clause.

Staples argues that Congress lacked authority under the Commerce Clause to enact 18 U.S.C. § 924(c)(1). That statute provides that “[w]hoever, during and in relation to any crime of violence or drag trafficking ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall ... be sentenced to imprisonment for five years.” At issue is whether the prohibited activity “substantially affects” interstate commerce. Lopez, — U.S. at -, 115 S.Ct. at 1630.

In Lopez, the Court declared unconstitutional a statute which prohibited “any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” 18 U.S.C. § 922(q)(2)(A). The Court held that the statute did not substantially affect interstate commerce for three reasons. First,

[sjection 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

— U.S. at -, 115 S.Ct. at 1631. Second, “§ 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” Id. at -, 115 S.Ct. at 1631. Third, the statute lacked legislative findings that it would substantially affect interstate commerce. Id. at - - -, 115 S.Ct. at 1631-32.

Section 924(c)(1) differs from § 922(q) in at least the first two respects. First, § 924(e)(1) regulates “activities that arise out of or are connected with a commercial transaction.” Id. at -, 115 S.Ct. at 1630. Unlike education, drug trafficking is a commercial activity which substantially affects interstate commerce. See United States v. Gonzalez, 893 F.Supp. 935, 936 (S.D.Cal.1995) (upholding constitutionality of prohibition on distribution of controlled substances under Lopez because “distribution of controlled substances has a substantial effect on interstate commerce”); see also United States v. Thornton, 901 F.2d 738, 741 (9th Cir.1990) (“Congress has stated and we have confirmed that drug trafficking is a national concern which affects interstate commerce.”).

Second, § 924(c)(1) contains a jurisdictional element which ensures, “through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” Lopez, — U.S. at -, 115 S.Ct. at 1631. Section 924(c)(1) requires that the defendant engage in a crime of drug trafficking “for which he may be prosecuted in a court of the United States.” It thus resembles 18 U.S.C. § 844(h), which this court upheld in United States v. Pappadopoulos, 64 F.3d 522, 527 (9th Cir.1995), as amended on denial of reh’g (Nov. 13, 1995). Section 844(h) provides:

Whoever ... uses fire or an explosive to commit any felony which may be prosecuted in a court of the United States ... shall, in addition to the punishment provided for such felony, be sentenced to imprisonment for five years....

(Emphasis added). This court found that the jurisdictional element guaranteed that the statute would substantially affect interstate commerce: “Section 844(h) does not facially exceed Congress’s commerce power because it requires that the underlying felony itself be one that can be prosecuted ‘in a court of the United States.’ ” Pappadopoulos, 64 F.3d at 528. Likewise, § 924(c)(1) requires that the underlying crime of drug trafficking be one which “may be prosecuted in a court of the United States.” The Eighth Circuit adopted similar reasoning in rejecting a Lopez challenge to § 924(c)(1). United States v. Brown, 72 F.3d 96, 97 (8th Cir.1995) (“Because Brown’s section 924(c)(1) conviction is based on’ his section 841(a)(1) drug trafficking offense, which involved ‘an activity that substantially affeet[ed] interstate commerce,’ we reject Brown’s Lopez challenge.”) (quoting Lopez, — U.S. at -, 115 S.Ct. at 1630).

Staples notes that he was never actually charged with the underlying felony, unlike the defendants in Pappadopoulos and Brown. Whether or not Staples was charged with the felony, however, the jury found that he engaged in a crime of drug trafficking which could have been prosecuted in federal court, i.e. conduct which substantially affected interstate commerce.

We agree with the Eighth Circuit that § 924(c)(1) does not exceed Congress’ power under the commerce clause.

II. Staples “carried” the firearm.

After the parties filed their briefs, the Supreme Court issued Bailey v. United States, in which the Court reversed two convictions under § 924(c)(1). — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). In Bailey, the Court defined “use” as “active employment of the firearm.” Id. at -, 116 S.Ct. at 506. The firearms in Bailey were found in a locked ear trunk and in a locked footlocker in a bedroom closet. Id. at -, 116 S.Ct. at 509. The Court held that the defendants had not “used” the firearms, since no evidence indicated that either defendant actively employed the firearms. Because the defendants were charged under both the “use” and “carry” prongs of § 924(c)(1), and the court of appeals did not consider liability under the “carry” prong, the Court remanded for consideration of whether the defendants carried the firearms. Id.

Staples did not “use” the firearm under Bailey. No evidence indicates that he actively employed the firearm; it remained in the glove compartment during the entire transaction.

At issue is whether Staples “carried” the firearm by transporting it in the glove compartment of a car to the scene of a drug transaction. Staples’ indictment charged that he “did use and carry a firearm.” (emphasis added). In his plea agreement, Staples admitted that “I knowingly carried this firearm in the glove compartment of the car at the time I distributed the cocaine to John Matthews.... I admit that I carried the firearm during and in relation to the distribution of that cocaine.” Plea Agreement at 2.

Bailey provides some guidance in interpreting “carry.” The Court noted that “[t]he ‘carry’ prong of § 924(e)(1), for example, brings some offenders who would not satisfy the ‘use’ prong within the reach of the statute.” — U.S. at -, 116 S.Ct. at 509.

Under the interpretation we enunciate today, a firearm can be used without being carried, e.g., when an offender has a gun on display during a transaction, or barters with a firearm without handling it; and a firearm can be carried without being used, e.g., when an offender keeps a gun hidden in his clothing throughout a drug transaction.

Id. at -, 116 S.Ct. at 507.

Subsequent to Bailey, this court held that “in order for a defendant to be convicted of ‘carrying’ a gun in violation of section 924(c)(1), the defendant must have transported the firearm on or about his or her person. This means the firearm must have been immediately available for use by the defendant.” United States v. Hernandez, 80 F.3d 1253, 1258 (9th Cir.1996) (citations omitted). Since the gun in Hernandez was located in a locked toolbox, this court held that the defendant did not use or carry the firearm. Id.

In Hernandez, this court relied on the Sixth Circuit’s interpretation of “carry” in United States v. Riascos-Suarez, 73 F.3d 616 (6th Cir.1996). The Sixth Circuit held that “the firearm must be immediately available for use-on the defendant or within his or her reach.” Id. at 623. The court held that the defendant carried a firearm when he drove with a loaded gun on the driver’s side of the console. Id.

Other cases agree that a defendant can “carry” a firearm in an automobile. In United States v. Barber, this court interpreted § 924(e)(2), the predecessor to the current § 924(c)(1), and held that a defendant had “carried” a firearm in the glove compartment of his car. 594 F.2d 1242, 1244 (9th Cir.), cert. denied, 444 U.S. 835, 100 S.Ct. 69, 62 L.Ed.2d 46 (1979). Likewise, the Eleventh Circuit recently held that a defendant “carried” a firearm which was located in a glove compartment. United States v. Farris, 77 F.3d 391, 395-96 (11th Cir.1996) (“From this the jury could find that the Toyota was used as a drug distribution center and that Farris knew the firearm was in the automobile. Put differently, the jury could find that the firearm was being carried by Farris in the vehicle.”).

Staples carried the firearm under Hernandez. The firearm was in the glove compartment, and thus “about” his person, within reach and immediately available for use. Moreover, in his plea agreement Staples admitted that he carried the firearm in connection with his drug trafficking activities. Under these facts, Staples carried the firearm.

The judgment of the district court is AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    The BLACKFEET TRIBE OF the BLACKFEET INDIAN RESERVATION, Plaintiff-Appellant, v. Janet JESSUP, Administrator of the Gaming Control Division; Marc Racicot, Governor of the State of Montana; Andy Poole, Deputy Director of the Department of Commerce; Judy Browning, Chief of Staff for Policy and Legal Affairs; and the State of Montana, Defendants-Appellees.
    No. 94-35079.
    United States Court of Appeals, Ninth Circuit.
    June 7, 1996.
    N. Jean Bearcrane, Blackfeet Legal Department, Browning, Montana, and Jeanne S. Whiteing, Whiteing & Thompson, Boulder, Colorado, for plaintiff-appellant.
    Joseph P. Mazurek, Attorney General, and Deanne L. Sandholm, Assistant Attorney General, Helena, Montana, for defendantsappellees.
    Before: BEEZER and FERNANDEZ, Circuit Judges, and ORRICK, Senior District Judge.

       The Honorable William H. Orrick, Senior United States District Judge for the Northern District of California, sitting by designation.

   The judgment of this court, 39 F.3d 1186 (Table), is vacated. For the reasons stated by the Supreme Court in Seminole Tribe of Florida v. Florida, — U.S. -, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), we affirm the judgment of the district court.

AFFIRMED.


author: TACHA, Circuit Judge.

text:
    SYSTEMCARE, INC., Plaintiff-Counter-Defendant-Appellant, v. WANG LABORATORIES CORPORATION, Defendant-Counter-Claimant-Appellee, v. Michael WRIGHT, Counter-Defendant, United States of America, Amicus Curiae.
    No. 95-1032.
    United States Court of Appeals, Tenth Circuit.
    May 29, 1996.

      Ronald Katz, Coudert Brothers, San Francisco, California (Janet A. Hart and Paul S. Sehmidtberger with him on the briefs), for Appellant.
    Jerrold J. Ganzfried, Howrey & Simon, Washington, DC (Michael J. Cook, Faegre & Benson, Denver, Colorado, and Florinda J. Iascone, Wang Laboratories, Inc., Billerica, MA, with him on the brief; Robert F. Ruyak and Sheila R. Schreiber, Howrey & Simon, Washington, DC, on the brief), for Appellee.
    Anne K. Bingaman, Assistant Attorney General, Diane P. Wood, Deputy Assistant Attorney General, Catherine G. O’Sullivan and David Seidman, Attorneys, U.S. Department of Justice, Washington, DC, on the brief for Amicus Curiae.
    Before TACHA, HOLLOWAY, and BRISCOE, Circuit Judges.
   TACHA, Circuit Judge.

Systemcare, Inc. (“Systemcare”) filed this action alleging that Wang Laboratories, Inc. (“Wang”) violated the Sherman Act, 15 U.S.C. § 1, by illegally tying the sale of its software support services to the purchase of its hardware support services. The district court granted summary judgment in favor of Wang based upon this court’s opinion in City of Chanute v. Williams Natural Gas Co., 955 F.2d 641 (10th Cir.), cert. denied, 506 U.S. 831, 113 S.Ct. 96, 121 L.Ed.2d 57 (1992). Systemcare, Inc. v. Wang Lab., Inc., 787 F.Supp. 179 (D.Colo.1992). Systemcare appeals, maintaining that (1) we should overrule Chanute, (2) the Supreme Court effectively overruled Chanute in Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992), and (3) Chanute is factually distinguishable. Wang contends that its intervening bankruptcy proceedings left the district court without jurisdiction over this case and that, consequently, we are without jurisdiction to review it on appeal. We hold that the district court did have jurisdiction over the ease, and exercise our jurisdiction under 28 U.S.C. § 1291 to affirm.

Background

Wang manufactured “VS” minicomputers, and designed and copyrighted a software system for use with these computers. Wang now offers both hardware and software support services for its computers. The hardware support services involve maintenance and repair of computer equipment. The software support services include software maintenance bulletins, software updates, on-site and telephone technical assistance, remote link assistance, and the right to copy the software. Because Wang owns the copyright on its software, it alone can provide several of these software services.

Systemeare, an independent service organization, services computer equipment that it does not manufacture. Systemeare services Wang computer hardware in Colorado. In doing so, Systemeare competes with Wang in the provision of hardware support services for VS computers.

Beginning in 1985, Wang offered its minicomputer users a package of hardware and software support services called Wang Software Services (‘WSS”). Under the WSS contract, the customer must subscribe to Wang’s hardware support program in order to obtain Wang’s software support services. Many of Wang’s customers have entered into WSS contracts with Wang. Systemeare alleges that the WSS contracts involve unlawful tying because Wang forces its customers to purchase its hardware support services in order to obtain its software support services.

Wang responds that customers are not compelled to purchase its hardware services with its software services because both types of service are separately available on a “per incident” basis. Systemeare, however, contends that per incident services are as costly as WSS contract services and that per incident customers do not receive the same quality of software support services as WSS customers. Because of these cost and quality differences, customers usually choose the WSS contract over the software services offered on a per incident basis. Thus, according to Systemeare, Wang uses its market power in the software support industry to eliminate competition in the hardware support industry. Systemeare alleges that Wang’s WSS contracts foreclose competition in an otherwise competitive hardware support industry in violation of section 1 of the Sherman Act.

Procedural History

Systemeare filed its complaint against Wang on October 11, 1989, in the United States District Court for the District of Colorado. Wang answered and asserted counterclaims against Systemeare and its president under federal and state trademark infringement law. After discovery closed, Wang moved for summary judgment on the section 1 claim. The district court deferred ruling on the motion and directed both parties to submit briefs regarding a recently-decided Tenth Circuit case, City of Chanute v. Williams Natural Gas Co., 955 F.2d 641 (10th Cir.), cert. denied, 506 U.S. 831, 113 S.Ct. 96, 121 L.Ed.2d 57 (1992). The district court, relying on Chanute, granted Wang’s motion for summary judgment. Systemcare, Inc. v. Wang Lab., Inc., 787 F.Supp. 179 (D.Colo.1992). Systemeare then moved under Fed. R. Civ. Proc. 59(e) to alter or amend judgment.

On August 18,1992, prior to oral argument on Systemcare’s Rule 59(e) motion, Wang filed a petition for relief under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Massachusetts. All judicial proceedings against Wang, including Systemcare’s Rule 59(e) motion, were automatically stayed pursuant to 11 U.S.C. § 362(a). In keeping with that automatic stay, the Colorado district court entered an order on September 4, 1992, staying the litigation against Wang in the District of Colorado. On December 10, 1992, the Colorado district court retired the case from its active docket. Wang continued to operate its business as a debtor-in-possession pursuant to 11 U.S.C. § 1107.

Systemeare then turned its attention to the bankruptcy court. On February 5, 1993, Systemeare filed a proof of claim against the bankruptcy estate. The proof of claim specifically identified the pending Colorado case, stated that the debt to Systemcare was confined to the period from 1986 to the date of Wang’s bankruptcy petition, and valued the claim at $1,548,000. Wang valued the claim at zero. On March 4, 1993, Systemcare filed a motion pursuant to 11 U.S.C. § 362(d)(1) for partial relief from the automatic stay in order to pursue injunctive relief in the Colorado case. The bankruptcy court denied that motion in a minute order dated May 6, 1993, and the Massachusetts District Court affirmed that decision on January 4,1996.

Systemcare filed a second motion for relief from the automatic stay with the bankruptcy court on October 26, 1993. In response, Wang opposed the motion for relief from the stay and moved for summary judgment on Systemcare’s claim against the bankruptcy estate. By minute order dated December 20, 1993, the bankruptcy court denied System-care’s second motion for relief from the stay and granted Wang’s motion for summary judgment on Systemcare’s claim. System-care’s appeal of that order is currently pending before the Massachusetts district court.

Wang’s plan of reorganization was confirmed on September 21, 1993. The confirmation order discharged Wang’s debts and permanently enjoined all proceedings with respect to such debts. The discharge ended the automatic stay. 11 U.S.C. § 362(c)(2). Over a year later, on September 26, 1994, Systemcare moved the Colorado district court to reactivate the case and rule on Systemcare’s still-pending Rule 59(e) motion. On December 15, 1994, the Colorado district court granted Systemcare’s motion to reactivate and denied Systemcare’s pending Rule 59(e) motion, thus rendering a final judgment. Systemcare now appeals that decision.

Jurisdiction

Wang contends that the Colorado district court lacked jurisdiction to reactivate and render judgment in this ease. We disagree. Wang initially argues that its bankruptcy automatically stayed all pre-petition lawsuits against Wang. The filing of Wang’s bankruptcy petition automatically stayed “the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title....” 11 U.S.C. § 362(a)(1). In accordance with the automatic stay, the Colorado district court stayed and eventually removed the case from its active docket. The district court only reactivated the case after the expiration of the § 362(a) stay, and thus the automatic stay presented no bar to the court’s jurisdiction.

Wang further maintains that upon consummation of its plan of reorganization, the bankruptcy court replaced the automatic stay with a permanent injunction prohibiting all prepetition lawsuits. Wang’s plan and the bankruptcy court order confirming that plan, consistent with 11 U.S.C. § 524, discharged Wang’s pre-confirmation debts. Section X.B.2.d of the plan states:

Except as expressly provided in the Plan, WLI [Wang Laboratories, Inc.] is discharged effective upon the Confirmation Date from any “debt” (as that term is defined in section 101(12) of the Bankruptcy Code), and WLI’s liability in respect thereof is extinguished completely, whether reduced to judgment or not, liquidated or unliquidated, contingent or noncontingent, asserted or unasserted, fixed or unfixed, matured or unmatured, disputed or undisputed, legal or equitable, or known or unknown, or that arose from any agreement of WLI that has either been assumed or rejected in the Chapter 11 Case or pursuant to the Plan, or obligation of WLI incurred before the Confirmation Date, or from any conduct of WLI prior to the Confirmation Date, or that otherwise arose before the Confirmation Date, including, without limitation, all interest, if any, on any such debts, whether such interest accrued before or after the Petition Date.

The bankruptcy court order confirming the plan recites the above-quoted language, and then goes on to state, “The commencement or continuation of any action ... with respect to any debt discharged hereunder, or any act to collect, recover, or offset any debt discharged hereunder as a personal liability of WLI, or from properties of WLI, shall be, and hereby are, forever enjoined.” In re Wang Lab., Inc., No. 92-18525-WHC (Bankr.D.Mass. May 25, 1994) (order confirming reorganization plan). Wang contends that this permanent injunction continues the prohibitions of the automatic stay and thus deprived the district court of jurisdiction to rule on Systemcare’s Rule 59(e) motion.

Wang’s argument is misguided, however, because the scope of the permanent injunction is not coextensive with the scope of the automatic stay. Section 362(a) automatically stays the commencement or continuation of all judicial proceedings (with a few statutory exceptions) against the debtor. The permanent injunction in the confirmation order, on the other hand, only enjoins proceedings with respect to discharged debts. See 11 U.S.C. § 524(a)(2). Discharged debts are those debts that arose before the date of the confirmation. See 11 U.S.C. § 1141(d). Thus the plan of reorganization and the order confirming it discharged all pre-confirmation debts, and the attendant permanent injunction prohibits all actions with respect to those debts.

If, as Wang maintains, the bankruptcy court’s permanent injunction precludes all forms of relief that can be granted to Systemcare, then this case is moot and both we and the district court lack jurisdiction. See Osborn v. Durant Bank & Trust Co. (In re Osborn), 24 F.3d 1199, 1203 (10th Cir.1994). The pivotal question, then, is whether Systemcare’s lawsuit is an action with respect to a debt that arose before confirmation of the bankruptcy plan. Systemcare’s lawsuit requests both damages and injunctive relief. To the extent that the lawsuit seeks damages for Wang’s pre-confirmation behavior, it is clearly prohibited by the permanent injunction. However, Systemcare is also pursuing this action to obtain relief for Wang’s ongoing behavior that allegedly violates the Sherman Act. Thus, to the extent that System-care’s lawsuit seeks to recover damages for post-confirmation behavior and to enjoin Wang’s tying arrangement, it does not fall within the scope of the permanent injunction. Because the bankruptcy court’s permanent injunction does not preclude all forms of relief in this case, the case is not moot and both we and the Colorado district court may properly exercise jurisdiction over the merits of the action.

Section 1 of the Sherman Act

We review the district court’s grant of summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.1995). Section 1 of the Sherman Act prohibits “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce....” 15 U.S.C. § 1. Thus, in order to violate Section 1, there must be (1) concerted action in the form of a contract, combination, or conspiracy and (2) restraint of trade. The district court held that Systemcare failed to allege the requisite concerted action as defined in City of Chanute v. Williams Natural Gas Co., 955 F.2d 641 (10th Cir.), cert. denied, 506 U.S. 831, 113 S.Ct. 96, 121 L.Ed.2d 57 (1992). We agree.

Although Chanute has a long and complex history, the facts relevant to our decision are straightforward. The defendant, Williams Natural Gas Co. (‘Williams”), both supplied and transported natural gas. Chanute, 955 F.2d at 646. For approximately one year, Williams refused to transport gas to eight cities, including Chanute, Kansas, unless the cities also purchased Williams’s gas (or the gas of several other companies on an approved list). Id. The cities purchased gas from Williams, and then alleged that the arrangement violated sections 1 and 2 of the Sherman Act by tying the purchase of Williams’s transportation services to the purchase of Williams’s gas. Id.

This court found that the contractual relationship between Williams and the cities was not sufficient to fulfill the concerted action requirement under section 1. Id. at 649-51. We specifically rejected the proposition that the supply and transportation contracts between Williams and its customers amounted to concerted action:

The Cities have only brought evidence that establishes Williams tied its natural gas to its transportation facilities. The Cities have not shown Williams acted in concert with any other entity. The Cities name only one defendant. The other parties to the allegedly illegal contracts to establish the conspiracy are the Cities themselves. We conclude that the Cities have failed to make the requisite preliminary showing of a conspiracy to go forth with their tying claims under § 1 of the Sherman Act and find summary judgment is appropriate.

Id. at 650-51. Thus, according to Chanute, a tying arrangement imposed by a single entity is not proscribed by section 1 of the Sherman Act, even if that arrangement is embodied in a contract between seller and buyer. Instead, a plaintiff must establish a conspiracy between two or more entities to force such an agreement upon a third party. In this case, there is no evidence that Wang allied itself with any other party when it conditioned the sales of its software support services on the purchase of its hardware support services. Because Systemcare has failed to prove concerted action as defined in Chanute, we must affirm the judgment of the district court.

Systemcare makes three arguments against our application of Chanute. First, it asks that we overrule Chanute in light of Supreme Court analysis that appears to implicitly assume that tying contracts meet the concerted action requirement of section 1. We cannot, however, overrule a decision of another panel of this court. In re Smith, 10 F.3d 723, 724 (10th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 53, 130 L.Ed.2d 13 (1994). ‘We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.” Id.

Second, Systemcare argues that the Supreme Court effectively overruled Chanute in Eastman Kodak Co. v. Image Technical Serv., Inc., 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). The plaintiffs in Kodak were independent service organizations (ISOs) that serviced Kodak copiers. Kodak also serviced its own copiers. The ISOs alleged that Kodak violated section 1 of the Sherman Act by tying the sale of replacement parts to the sale of Kodak servicing, thereby making it difficult for the ISOs to compete with Kodak in the service industry. Id. at 459, 112 S.Ct. at 2078. The Supreme Court found that the ISOs had alleged sufficient facts to escape summary judgment. Id. at 485-86, 112 S.Ct. at 2091-92.

Although these facts are similar to those in our case, Kodak does not overrule Chanute. The plaintiffs in Kodak alleged that Kodak reached agreements with other independent companies that manufactured Kodak parts to bar the sale of replacement parts to the plaintiffs. Id. at 458, 112 S.Ct. at 2077-78. Such a conspiracy among multiple parties is precisely what Systemcare has failed to allege in this case.

Systemcare also points to dicta in Kodak that supports its position. The Supreme Court noted the following: “Assuming, arguendo, that Kodak’s refusal to sell parts to any company providing service can be characterized as a unilateral refusal to deal, its alleged sale of parts to third parties on condition that they buy service from Kodak is not.” Id. at 463 n. 8, 112 S.Ct. at 2080 n. 8. While this dicta does provide oblique support for Systemcare’s position, it is several steps away from overruling the rule established in Chanute.

Finally, both Systemcare and the United States as amicus curiae ask that we distinguish Chanute. Systemcare’s attempt to distinguish Chanute in its brief and its counsel’s assertion at oral argument that “any case can be distinguished” are unpersuasive. The United States argues that the Chanute majority’s holding that the contracts were insufficient to make the “requisite ... showing of a conspiracy,” 955 F.2d at 650, was actually an observation that the contracts did not constitute tying agreements. We find this interpretation to be unnecessarily tortured, and see no intellectually honest way to distinguish Chanute from the facts in this case. Systemcare has failed to provide evidence that creates a genuine issue of material fact as to the existence of concerted action as defined by governing Tenth Circuit law. We must therefore affirm the district court’s grant of summary judgment on the section 1 claim.

Conclusion

Although Systemcare is enjoined from pursuing monetary damages relating to Wang’s behavior before confirmation of its plan of reorganization, the district court properly exercised jurisdiction over Systemcare’s attempt to recover damages for post-confirmation behavior and to enjoin Wang’s tying arrangement. We find, however, that Systemcare has failed to allege the existence of concerted action as defined in Chanute, and therefore AFFIRM.


author: MURPHY, Circuit Judge. McKAY, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert MASON, Defendant-Appellant.
    No. 95-5118.
    United States Court of Appeals, Tenth Circuit.
    May 30, 1996.
    Allen J. Litchfield, Assistant United States Attorney, Tulsa, Oklahoma, (James L. Swartz, Assistant United States Attorney, Tulsa, Oklahoma, on the brief), for PlaintiffAppellee.
    Craig P. Bryant, Assistant Federal Public Defender, Office of the Federal Public Defender, Tulsa, Oklahoma, for Defendant-Appellant.
    Before ANDERSON, McKAY, and MURPHY, Circuit Judges.
   MURPHY, Circuit Judge.

Defendant was convicted by a jury of possessing a firearm after a prior felony conviction. On appeal, he argues that the trial court erred by instructing the jury, based on his stipulations, that two elements of the offense with which he was charged had been proved. This court affirms.

Defendant Robert Mason was charged in a one-count indictment with possession of a firearm after prior conviction of a felony, in violation of 18 U.S.C. § 922(g). At trial, Mason stipulated that he had previously been convicted of a felony and that the firearm he was charged with possessing had been transported in interstate commerce.

At the close of evidence, the judge instructed the jury that to sustain its burden of proof, the government was required to prove: (1) the defendant had previously been convicted of a crime punishable by imprisonment for a term exceeding one year; (2) the defendant knowingly possessed the firearm described in the indictment; and (3) the possession was in or affecting interstate or foreign commerce. In addition, the court instructed the jury as follows:

The parties stipulate that the first and third elements have been met, that is, that the defendant has previously been convicted of a crime punishable by imprisonment for a term exceeding one year and that the possession of the firearm was in or affecting commerce. Therefore, the government need not offer proof as to these elements, and' you should consider them proven by the government.

Defendant did not object to the jury instructions at trial. The jury returned a verdict of guilty and Mason was sentenced to seventy-eight months imprisonment, to be followed by three years supervised release.

Notwithstanding his stipulations, Mason on appeal argues that the district court erred by instructing the jury that the first and third elements of the crime with which he was charged had been proved. He contends that the district court improperly invaded the province of the jury by removing the stipulated elements from the jury’s consideration.

Because no objection was raised at the time of trial, this court reviews the district court’s instructions to the jury only for plain error. United States v. Kennedy, 64 F.3d 1465, 1478 (10th Cir.1995). Rule 52(b) of the Federal Rules of Criminal Procedure, which governs an appeal from criminal proceedings, provides that “[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Because the court finds no error in the trial court’s instructions to the jury, the court need not determine whether the claimed error was plain or affected substantial rights. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993).

The defendant relies upon the Sixth Circuit’s decision in United States v. Jones, 65 F.3d 520 (6th Cir.1995), vacated and reh’g en banc granted, 73 F.3d 616 (6th Cir.1995), to support his argument that the district court improperly invaded the province of the jury by removing the stipulated elements from the jury’s consideration. In Jones, the Sixth Circuit held that it is plain error for a trial court to instruct a jury that an essential element of a crime has been established when the defendant has stipulated to the facts which prove that element. Id. at 522-23. The defendant in Jones, like the defendant in this case, had been charged with possession of a firearm after prior conviction of a felony and had stipulated that he was a convicted felon. Id. at 521. The court, relying on general language from court of appeals and Supreme Court precedent, declared that “stipulated evidence remains evidence for the jury’s consideration,” and that a trial judge “override[s] or interfere[s] with the jurors’ independent judgment” when it instructs the jury that an element of the crime has been established, notwithstanding the defendant’s stipulation to that element. Id. at 522. (emphasis in original) (citation and internal quotation marks omitted).

As the dissent in Jones indicates, however, none of the cases cited by the Jones majority involved , a stipulation to an element of the crime. Id. at 524-25 (Matia, J., dissenting). Rather, in each of the cases upon which the Jones majority relies, the trial court removed the consideration of an issue from the jury based on the strength or singularity of the government’s evidence. See, e.g., United States v. Mentz, 840 F.2d 315 (6th Cir.1988). By relying on such cases, the Jones majority fails to distinguish between evidence and facts.

When the only evidence tends to establish an elemental fact, or when the parties stipulate to evidence tending to establish an elemental fact, the jury must still resolve the existence or nonexistence of the fact sought to be proved. In contrast, the jury need not resolve the existence of an element when the parties have stipulated to the facts which establish that element. In the latter circumstance, the judge has not removed the consideration of an issue from the jury; the parties have. More specifically, by stipulating to elemental facts, a defendant waives his right to a jury trial on that element. If such a partial waiver runs afoul of the Sixth Amendment, then traditional, wholesale waivers manifest in bench trials and guilty pleas must necessarily violate the right to a jury trial.

By holding that a defendant may not waive the right to a jury trial on a particular element by stipulating to the facts that prove that element, the Jones decision deprives defendants like Mason of the strategic benefit of a sterile stipulation in lieu of stark evidence of both the number and character of prior felony convictions. See Jones, 65 F.3d at 526 (Matia, J., dissenting). If the jury is allowed to ignore facts that have been proved by stipulation, prosecutors will have little incentive to enter stipulations. Instead, “the government will be forced to introduce into evidence every previous felony conviction a defendant has, lest the jury choose to ‘disbelieve’ either a stipulation or any one such conviction the government might select.” Id. (Matia, J., dissenting). In this case, if Mason had not stipulated to a prior felony conviction, the prosecution likely would have sought to introduce evidence of his multiple felony convictions, including his conviction for assault with a deadly weapon. This result would have been far more prejudicial to Mason than the following antiseptic stipulation: “It is hereby stipulated and agreed between the parties that the defendant, Robert Lee Mason, had been previously convicted in a court of a crime punishable by imprisonment for a term exceeding one year.”

Perhaps the most disturbing aspect of Jones is its underlying premise: jury nullification. While we recognize that a jury in a criminal case has the practical power to render a verdict at odds with the evidence or the law, a jury does not have the lawful power to reject stipulated facts. Such a power, if exercised, would conflict with the jurors’ sworn duty to apply the law to the facts, regardless of outcome. See United States v. Trujillo, 714 F.2d 102, 105 (11th Cir.1983).

In addition to relying on Jones, Mason argues that the Supreme Court’s decision in United States v. Gaudin, — U.S. -, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), mandates a finding of plain error in this case. We disagree. In Gaudin, a criminal prosecution for making false statements in a matter within the jurisdiction of a federal agency, the Court held that the Sixth Amendment required the trial judge to submit the question of the materiality of the defendant’s allegedly false statements to the jury. Id. at -, 115 S.Ct. at 2320. The defendant had not stipulated to the materiality of his statements. Gaudin holds that “[t]he Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged.” Id. at -, 115 S.Ct. at 2314. Our holding simply reaffirms that a defendant may waive this right to a jury determination on a particular issue when it is in his interest to do so. Because the district court’s instructions to the jury were consistent with Mason’s right to a jury determination of every element of his crime and his decision to waive that right, this court finds no error.

The judgment of conviction is AFFIRMED.

McKAY, Circuit Judge,

dissenting:

As I see it, the issue in this case is whether the court violates a defendant’s right to trial by jury when it directs a jury that it must accept stipulated facts as proven. Apparently, the majority believes that no error occurred because the Defendant waived his right to a jury trial as to those facts which he stipulated. Because this position is contrary to clear circuit precedent, I dissent.

I believe the majority’s erroneous analysis begins with its failure to understand the nature and intent of Defendant’s stipulation. In another case in which a defendant offered to stipulate that he had a prior conviction, we explained the true nature of such a stipulation:

[Defendant’s proposed stipulation did not attempt to keep from the jury the. fact that he was a convicted felon, nor did it seek to preclude the jury from deciding the prior conviction element of the crime. Rather, the stipulation sought only to limit the prejudice that would result from the jury being informed that [Defendant] had been convicted of murder and possession with intent to distribute marijuana.

United States v. Wacker, 72 F.3d 1453, 1473 (10th Cir.1995) (emphasis added). Here, Defendant’s similar confession was made for the same purpose: he did not seek to preclude the jury from deciding an element of the crime; rather, his purpose was to limit the prejudicial effect of his prior conviction. The government’s proffer of the stipulation itself supports this conclusion:

[Prosecutor]: Your Honor, the government-has no further witnesses. However, we do have a stipulation that has been entered into between counsel and myself, and I’d ask the Court’s permission to read that into the record at this time.
Ladies and gentlemen, the following stipulation has been entered into between the government as plaintiff and Robert Lee Mason as defendant....

R., Vol. III, at 34-35. This excerpt clearly shows that the stipulation was not a plea by Defendant, and it was not an offer to the judge to decide an issue as a matter of law. Rather, the stipulation was merely an agreement between the parties (not between the parties and the court) and was presented to the jury for its consideration. The trial court instructed the jury, however, that “the parties stipulated that the first and third elements have been met” and that “the government need not offer proof as to these elements and you should consider them proven by the government.” R., Vol. III, at 70. This instruction missed the point that the stipulation was itself an offer of proof and not some form of plea to the first and third elements of the crime. As this circuit has stated before, “we cannot conclude a stipulation to the fact of a prior valid conviction ... is the functional equivalent of a guilty plea.” Johnson v. Cowley, 40 F.3d 341, 346 (10th Cir.1994). Given this analysis, I cannot concur that Defendant intended to waive his right to a jury trial on this issue.

In another case similar to this one, the parties stipulated that the alleged crime took place in Indian country. United States v. Benally, 756 F.2d 773, 778 (10th Cir.1985). The judge gave the jury the following instruction: “Second: that the offense charged in the indictment took place in Indian country. This element has been stipulated to by the parties and you must accept it as being true....” Id. (emphasis omitted). We held:

The instruction that the jury must accept that the accident occurred in Indian country as true because it had been stipulated by the parties is reversible error. The jury was free to consider the stipulated testimony and the other evidence.

Id. We based this holding on the following reasoning:

“[A] stipulation as to the testimony a witness would give if called, although it may constitute evidence of the facts covered, is not an admission of the truth of such testimony and does not prevent a party from attacking it as he might attack the testimony itself, had it been given.”

Id. (quoting United States v. Spann, 515 F.2d 579, 583 (10th Cir.1975)). Certainly Benally is distinguishable in that the defendant in this case, unlike in Benally, did not present evidence which contradicted his stipulation. This difference, however, does not undermine the position I hold. Rather, it underscores the fact that a stipulation in a criminal case is not a waiver of the right to have a jury decide a particular element of a crime. As we have said before, a prior conviction is merely “an evidentiary fact to which a defendant can stipulate like any other fact.” Johnson v. Cowley, 40 F.3d 341, 346 (10th Cir.1994). In this sense, a stipulation is no different than the presentation of uncontested testimony. Even with uneontested testimony, the defendant retains the right to have the jury, rather than the court, decide every element of the crime. The Supreme Court recognized this when it stated that a judge may not “direct a verdict for the State, no matter how overwhelming the evidence.” Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182 (1993). Thus, the court erred when it removed certain elements of the crime from the jury's consideration by instructing the jury that it must consider the stipulated evidence as proven.

Finally, I think it is necessary to point out that my conclusion in this case would not create a disincentive for prosecutors to agree to stipulations. Stipulations will still save prosecutors time and money in the presentation of their eases. Additionally, I believe juries will continue to accept stipulations as sufficient proof even if the judge does not instruct them to accept stipulated facts as proven.

Given that an error occurred but no objection was made, the issue remains whether that error was plain and whether substantial rights were affected. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993). Because of the precedent cited above, I believe the error was indeed plain. In answering the question whether substantial rights were affected, however, it will be helpful to look to the Supreme Court’s harmless error jurisprudence. Although most constitutional errors are subject to harmless-error analysis, an error which constitutes a “structural defect affecting the framework within which the trial proceeds” is not subject to harmless-error analysis and automatically requires reversal. Arizona v. Fulminante, 499 U.S. 279, 308-10, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991); see also Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 2082-83, 124 L.Ed.2d 182 (1993). In Sullivan v. Louisiana, the Supreme Court recently held that petitioner’s right to a jury trial was violated when the trial court gave an improper instruction defining “reasonable doubt.” Id. at 277-78, 113 S.Ct. at 2080-82. The Court further held that this violation of the right to a jury trial was the type of structural defect which required automatic reversal. Id. at 281, 113 S.Ct. at 2082-83. It also based its reasoning on the fact that harmless-error analysis can only take place where the jury has actually made factual findings. Because the trial court’s reasonable doubt instruction vitiated the jury’s findings, no meaningful harmless-error analysis could take place. Id. at 280-81, 113 S.Ct. at 2082-83; see also id. at 283, 113 S.Ct. at 2083-84 (Rehnquist, J., concurring). At the heart of the Court’s analysis was the concern that the judge, rather than the jury, would be making the requisite findings of guilt in direct violation of the right to a jury trial. Id. at 277, 278, 280, 281, 113 S.Ct. at 2080, 2080-81, 2082, 2082-83.

Thus, the case at hand is similar to Sullivan to the extent that the jury did not make findings on two elements of the crime because the judge instructed the jury that it must consider those elements as proven. Under the Sullivan analysis, the constitutional error in this case would require automatic reversal because the judge in effect usurped the jury’s role in making the necessary findings of fact. Given the result that would occur under harmless error analysis, I conclude that Defendant’s substantial rights were affected. The constitutional error which occurred constituted a structural defect in the trial itself, an error so serious that reversal is warranted. Thus, I believe Defendant’s conviction should be reversed and his case remanded for a new trial.

      . Although the panel’s Jones opinion is no longer binding precedent in the Sixth Circuit or persuasive authority in the instant case, this court addresses Jones both because the defendant relied upon it and because its reasoning, left unanswered, threatens to mislead the trial courts.

      . The dissent relies on this court’s dicta in United States v. Wacker, 72 F.3d 1453 (10th Cir.1995), for the proposition that a stipulation to a prior felony conviction in a § 922(g) prosecution does not "seek to preclude the jury from deciding the prior conviction element of the crime.” Id. at 1473. In Wacker, the court distinguished between those § 922(g) cases in which the defendant stipulates to a prior felony conviction in an attempt to hide his felony status from the jury and those cases in which the defendant seeks only to avoid the prejudice that would result from the presentation of evidence of the nature and number of his prior felony convictions. The Wacker court’s recognition that the prosecution may not reject a defendant’s offer to stipulate when the defendant's sole purpose is to avoid prejudice is in no way inconsistent with our holding that a defendant, by stipulating to elemental facts, waives his right to a jury trial on that element.
      In addition to Wacker, the dissent relies on this court’s decisions in Johnson v. Cowley, 40 F.3d 341 (10th Cir.1994), and United States v. Benally, 756 F.2d 773 (10th Cir.1985), for the proposition that a stipulation to an element is not a waiver of a jmy trial on that element. The dissent’s reliance on these decisions is misplaced. Cowley holds that a trial court is not required to engage in an independent inquiry to ensure that a stipulation to an element is knowing and voluntary. 40 F.3d at 346. Benally, which the dissent concedes is distinguishable, merely holds that it is reversible error for a trial court to instruct the jury that an element has been proved where the defendant has stipulated to the testimony a witness would have given if called. 756 F.2d at 778. Neither case addresses the issue of whether a stipulation to an element constitutes a waiver of a jury determination on that element.

      . Generally, the government supplies such proof by means of a certified copy of the judgment which expressly reflects the nature of the crime.

      . The view that juries may disregard the parties' stipulations based on jury nullification is explicit in the Jones concurrence: "[J]uries, in the exercise of their power of nullification, are free to ignore or reject facts that are ‘proved’; whether proved by the introduction of evidence or by stipulation.” Jones, 65 F.3d at 524 (Ryan, J., concurring) (emphasis added).

      . We note that our holding is consistent with the panel’s decision in United States v. Sherman, 576 F.2d 292 (10th Cir.), cert. denied sub nom. Cerase v. United States, 439 U.S. 913, 99 S.Ct. 284, 58 L.Ed.2d 259 (1978), and with the decisions of other circuits holding, without analysis, that it is not error for a trial court to instruct a jury that an essential element of a crime has been established when the defendant has stipulated to the facts establishing the element. See United States v. Houston, 547 F.2d 104, 107 (9th Cir.1976) (per curiam); United States v. Sims, 529 F.2d 10, 11 (8th Cir.1976) (per curiam).

      . In doing so, I remain mindful of the fact that the defendant bears the burden of proof in plain-error analysis, but the government bears the burden of persuasion in harmless-error analysis. See Olano, 507 U.S. at 734, 113 S.Ct. at 1777-78.


author: BALDOCK, Circuit Judge.

text:
    LODGE TOWER CONDOMINIUM ASSOCIATION, Town of Vail, Plaintiffs-Appellants, v. LODGE PROPERTIES, INC., Western Land Exchange Company, Clayton Yeutter, Secretary, U.S. Department of Agriculture; F. Dale Robertson, Chief, U.S. Forest Service; Gary Cargill, Regional Forester; Neil F. Morck, State Director, Bureau of Land Management; Delos Cy Jamison, Director of Bureau of Land Management; Manual Lujan, Secretary, U.S. Department of the Interior, Defendants-Appellees.
    No. 95-1223.
    United States Court of Appeals, Tenth Circuit.
    June 3, 1996.
    Charles B. White (Christopher J. Melcher, Brownstein, Hyatt, Farber & Strickland, Denver, Colorado, with him on the brief), Petros & White, Denver, Colorado, for Plaintiffs-Appellants.
    James S. Bailey, Jr. (Randall M. Livingston with him on the brief), Bailey, Harring & Peterson, Denver, Colorado, for private Defendants-Appellees.
    Jacques B. Gelin (Lois J. Schiffer, Assistant Attorney General, Albert M. Ferio, Jr., Attorney, Department of Justice, Washington, D.C., Henry J. Solano, United States Attorney, William R. Lucero, Assistant United States Attorney, Denver, Colorado, with him on the brief), Attorney, Department of Justice, Washington, D.C., for federal Defendants-Appellees.
    Before BALDOCK, LOGAN, and BRISCOE, Circuit Judges.
   BALDOCK, Circuit Judge.

Plaintiffs Lodge Tower Condominium Association and the Town of Vail, Colorado appeal a district court order rejecting their administrative challenges to a decision by the United States Forest Service to exchange federal land located in Vail for private land located in a wilderness area. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

Section 1716 of the Federal Land Policy and Management Act (“FLPMA”) authorizes the Department of Interior and the Forest Service to exchange public lands for private lands if “the public interest will be well served by making that exchange.” 43 U.S.C. § 1716(a). Pursuant to this statute, the Forest Service agreed to exchange a two-acre parcel of federal land — administered by the Forest Service but located within the boundaries of the Town of Vail — for a 385-acre parcel of privately-owned land located within' the Eagles Nest Wilderness Area. The exchange proponent — Lodge Properties, Inc.— proposed budding an hotel expansion on the two-acre parcel. Western Land Exchange Company assisted Lodge Properties, Inc. in the administrative proceedings prior to the exchange.

Lodge Tower Condominium Association, an unincorporated association of owners of condominiums constructed on land adjacent to the two-acre parcel, and the Town of Vail opposed the exchange at the administrative level. After the Forest Service rejected Plaintiffs’ objections and approved the exchange, the Bureau of Land Management issued a patent to the two-acre parcel to Lodge Properties, Inc.

Plaintiffs filed a complaint in the district court seeking judicial review under § 706 of the Administrative Procedure Act (“APA”), of the agency proceedings which culminated in the land exchange. See 5 U.S.C. § 706. Plaintiffs named as defendants federal officials who made the administrative decisions which led to the issuance of the patent to the two-acre parcel. Plaintiffs also named the private exchange proponents as defendants. Plaintiffs contended that the district court should set aside the exchange because it violated FLPMA and the National Environmental Policy Act (“NEPA”). The district court reviewed Plaintiffs’ contentions under the standards governing judicial review of agency action set forth in § 706 of the APA and concluded that there was “no basis for setting aside any agency action in this case.” Lodge Tower Condominium Ass’n v. Lodge Properties, Inc., 880 F.Supp. 1370, 1387 (D.Colo.1995). Consequently, the district court dismissed Plaintiffs’ case.

On appeal, Plaintiffs contend the district court erred in dismissing their complaint because the exchange was arbitrary, capricious, and contrary to law. Specifically, Plaintiffs argue: (1) the exchange was not in the public interest as required under FLPMA, 43 U.S.C. § 1716(a); (2) the exchange violated NEPA because it was premised on an inadequate environmental assessment; and (3) the Forest Service and the Bureau of Land Management violated regulations governing administrative stays and issued the patent to the two-acre parcel in violation of an administrative stay. Plaintiffs request this court to reverse the district court, rescind the patent to the property, order the Forest Service to quitclaim the wilderness property back to the private owner, and remand the case to the agency for further proceedings under FLPMA and NEPA.

We review Plaintiffs’ challenges to the land exchange under the deferential standard set forth in the APA: “The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “Review under § 706(2)(A) is narrow, and the agency need only demonstrate that it considered relevant factors and alternatives after a full ventilation of issues and that the choice it made was reasonable based on that consideration.” Mount Evans Co. v. Madigan, 14 F.3d 1444, 1453 (10th Cir.1994).

We have considered the district court’s order, the briefs of the parties, the parties’ oral arguments, and reviewed the entire record on appeal. After examining the applicable law and applying the deferential standards governing judicial review of agency action set forth in § 706(2)(A) of the APA, we find no reversible error and affirm.

AFFIRMED.


author: LUCERO, Circuit Judge.

text:
    In re HOME & FAMILY, INC., Debtor. HOME & FAMILY, INC., Plaintiff-Appellant, v. ENGLAND RESOURCES CORPORATION, Heatech International, Inc., Defendants-Appellees.
    No. 95-1239.
    United States Court of Appeals, Tenth Circuit.
    June 3, 1996.
    Philip D. Geil of Geil, Jeffers & Waitkus, P.C., Boulder, Colorado, for Plaintiff-Appellant.

      Michael G. Martin of Baker & Hostetler, Denver, Colorado, for Defendants-Appellees.
    Before HENRY, BRISCOE and LUCERO, Circuit Judges.
   LUCERO, Circuit Judge.

We review this case to determine whether the doctrine of “unique circumstances” saves Home & Family, Inc. (HFI) from the district court’s dismissal of its bankruptcy appeal. The doctrine permits an untimely appeal to go forward “where a party has performed an act which, if properly done, would postpone the deadline for filing an appeal and has received specific assurance by a judicial officer that this act has been properly done.” Osterneck v. Ernst & Whinney, 489 U.S. 169, 179, 109 S.Ct. 987, 993, 103 L.Ed.2d 146 (1989). We agree with the district court that the doctrine does not apply here and affirm.

I

HFI sought a declaration from the bankruptcy court that it held rights in intellectual property claimed by appellees. On November 2, 1994 the bankruptcy court entered an order granting summary judgment against HFI. On November 14, HFI filed a “Motion for Additional Time to Reconsider Court’s Order of November 2,1994.” HFI asked the bankruptcy court to extend the time to file a motion to reconsider or a notice of appeal through December 1. A clerk’s minute order was entered on November 16 granting the motion. On that same day, the United States Trustee (not a party to this appeal) filed an objection to. HFI’s motion. The Trustee argued that motions to reconsider are properly characterized as motions to amend or alter judgment under Fed. R.Bankr.P. 9023, and that extensions of time to file such motions are prohibited by Fed. R.Bankr.P. 9006(b)(2). In support of these contentions, the Trustee cited In re Antell, 155 B.R. 921 (Bankr.E.D.Pa.1992).

On December 1, 1994 HFI filed a “Motion to Reconsider and Amend Order Granting Defendants’ Motion for Summary Judgment.” HFI does not dispute the characterization of this motion as one filed under Fed.R.Bankr.P. 9023. On December 6, the bankruptcy court vacated its order granting HFI additional time to file that motion, concluding that it had no authority to grant that extension in the first instance. Eight days later, HFI filed a Motion to Amend asking the bankruptcy court to grant it an additional ten days to file an appeal, on the basis of the doctrine of unique circumstances. On that same day, HFI filed a Notice of Appeal with the district court. The bankruptcy court denied the Motion to Amend.

Although HFI’s appeal was untimely, the district court noted that the “unique circumstances” exception might permit it to be heard. See Senjuro v. Murray, 943 F.2d 36, 37 (10th Cir.1991) (per curiam). The court surveyed the ease law, and concluded that this Circuit has applied the doctrine “somewhat inconsistently.” Thus, the court turned for guidance to Pinion v. Dow Chemical, U.S.A., 928 F.2d 1522 (11th Cir.), cert. denied, 502 U.S. 968, 112 S.Ct. 438, 116 L.Ed.2d 457 (1991). In Pinion, the Eleventh Circuit held that attorneys are presumed to be familiar with the rules of the courts in which they practice, and therefore, represented parties may not invoke the “unique circumstances” exception to permit them to rely on an order that a lower court had no authority to enter. 928 F.2d at 1533 and n. 11. The district court applied Pinion and held that HFI could not reasonably rely on the bankruptcy court’s extension of time to file its Rule 9023 motion because that extension was specifically prohibited by the Rules. Further, the district court noted that the trustee’s objection put HFI on notice that the bankruptcy court had no authority to grant that extension. The district court found that unique circumstances were not present and dismissed the appeal.

II

We recognize that courts and counsel have faced difficulties trying to tune into one band the discordant signals emanating from our “unique circumstances” jurisprudence. Some background may prove helpful. The doctrine traces its origin to three Supreme Court cases. In the first, the Court reinstated an untimely appeal when the appellant reasonably relied on the district court’s initial finding that an extension under Fed.R.Civ.P. 73(a) was justified due to counsel’s excusable neglect. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217, 83 S.Ct. 283, 285, 9 L.Ed.2d 261 (1962) (per curiam).

The scope of the doctrine was expanded, over vigorous dissent, in two subsequent Supreme Court opinions. See Wolfsohn v. Hankin, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964) (per curiam); Thompson v. Immigration and Naturalization Serv., 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964) (per curiam). In Wolfsohn, the Supreme Court reversed the dismissal of an appeal as untimely in a one sentence opinion citing Harris Truck Lines and Thompson. Four Justices dissented in an opinion written by a member of the Harris Truck Lines majority, arguing that Harris Truck Lines should be confined to its facts — the situation where a party reasonably relies on the district court’s finding of “excusable neglect” under Fed.R.Civ.P. 73(a). Wolfsohn, 376 U.S. at 203, 84 S.Ct. at 699 (Clark, J., dissenting). In the dissenters’ view, Thompson and Wolfsohn represented an unwarranted extension of Harris Truck Lines because those opinions gave district judges “de facto power to grant extensions of time, directly contra to the definite requirements” of Fed.R.Civ.P. 6, 52 and 59. Id. at 204, 84 S.Ct. at 699. See also Thompson, 375 U.S. at 389, 84 S.Ct. at 399 (Clark, J., dissenting) (Harris Truck Lines is distinguishable because Fed. R.Civ.P. 73(a) permits extensions of time). Since Wolfsohn, the Supreme Court has not invoked the doctrine to permit an appeal to go forward, but neither has it repudiated the doctrine. See Osterneck, 489 U.S. at 179, 109 S.Ct. at 993.

In light of intervening Supreme Court opinions emphasizing the jurisdictional nature of filing deadlines, see, e.g., Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982); Browder v. Director, Dep’t of Corrections of Illinois, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978), the trend among the circuits is toward restricting application of the “unique circumstances” doctrine. Several of our sister circuits hold that, because attorneys are presumed to be familiar with the Federal Rules, reliance on an order purporting to grant additional time pursuant to a rule that does not permit an extension is unreasonable. See, e.g., Pinion, 928 F.2d at 1533 and n. 11; Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 1365-66 (3d Cir.1990). This Circuit was one of the first to adopt this approach. We found that an appellant’s reliance on an order enlarging time to appeal was not reasonable because counsel are charged with knowledge that Fed.R.App.P. 4(a)(5) does not permit extensions of time in excess of ten days. Certain Underwriters at Lloyds of London v. Evans, 896 F.2d 1255, 1258 (10th Cir.1990).

The problem is that Certain Underwriters seems to conflict with a prior Tenth Circuit opinion that permitted an appeal to go forward when the district court improperly extended the time to file a motion under Fed. R.Civ.P. 59(e). Stauber v. Kieser, 810 F.2d 1, 1-2 (10th Cir.1982) (per curiam). Apparently, the Stauber panel found “unique circumstances” to be present without evaluating the reasonableness of appellants’ reliance. Id. Stauber is not a mere aberration. It was cited in a post-Certain Underwriters case that permitted a bankruptcy creditor to proceed with an untimely complaint when a bankruptcy court improperly extended the time to file such complaints. Themy v. Yu (In re Themy), 6 F.3d 688, 690 (10th Cir.1993). We held there the bankruptcy court’s equitable power to rectify its own mistakes in the interest of justice permitted it to entertain the complaint. Id. at 689-90. In re Themy cited Stauber for the proposition that the jurisdictional nature of filing deadlines did not preclude the complaint from going forward. Id. at 690. See also Collard v. United States, 10 F.3d 718, 721 (10th Cir.1993) (Holloway, Ch. J., dissenting) (Stauber was “emphatically reaffirmed” in In re Themy and allows an appeal to proceed when district court extended time to file Rule 59(e) motion).

We recognize that it may become necessary for this Circuit to decide whether Stauber’s implicit holding — that parties represented by counsel may reasonably rely on an order entered in excess of a court’s jurisdiction — remains the law. Today is not the day. We are mindful of our duty to refrain from rendering opinions on “ ‘abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue’ ” in the case before us. Church of Scientology of California v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 449, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293 (1895)). The United States Trustee’s objection to HFI’s motion for additional time to file a Rule 9023 motion gave HFI actual notice that the bankruptcy court did not have the power to grant that extension. Therefore, we need not attempt to resolve the conflict between Stauber and Certain Underwriters on the question of constructive notice.

Ill

HFI argues that it was reasonable for it to rely on the bankruptcy court’s extension of time, and refers to unpublished opinions of the United States Bankruptcy Court for the District of Colorado, granting extensions of time similar to the one granted in this case. Because HFI’s counsel was accustomed to the granting of such extensions, HFI contends that it was reasonable to rely on the bankruptcy court’s order. We reject this argument.

HFI misapprehends the issue when it asks whether an Eastern District of Pennsylvania bankruptcy opinion that precludes such extensions is binding on a bankruptcy court in Colorado, or this Court. Of course not. The determinative inquiry is whether HFI’s reliance on the bankruptcy court’s extension was reasonable in the light of its awareness of Fed.R.Bankr.P. 9006(b)(2) as well as Antell. Antell’s square holding that a bankruptcy court has no power to extend the time to file a motion for reconsideration, 155 B.R. at 925, clearly supports the reasoning advanced by the Trustee. The plain language of Rule 9006(b)(2), that “[t]he court may not enlarge the time for taking action” under Rule 9023, compels Antell’s holding. HFI’s attention was directed to Rule 9006(b)(2) and the Antell opinion two weeks before its time to file an appeal expired. At that point, it was on notice that the bankruptcy court’s order of November 16 extended only the time to file a notice of appeal. HFI chose to file a Rule 9023 motion instead. Under these circumstances, its reliance on the bankruptcy court’s order was unreasonable. Equity does not require acceptance of a late filing here.

We sympathize with counsel, whose experience led him to believe that his client was entitled to rely on the bankruptcy court’s order. However, Supreme Court and Tenth Circuit law make it clear that, whatever the precise contours of the “unique circumstances” exception may be, it is a disfavored doctrine that is to be applied only in “carefully limited circumstances.” Senjuro, 943 F.2d at 37. When a party is made aware that an order extending time was entered in excess of the court’s jurisdiction, and there is still time to file a notice of appeal, it is unreasonable to continue relying on that order. See Certain Underwriters, 896 F.2d at 1258. Reasonable reliance being the mainstay of the “unique circumstances” doctrine, the doctrine has no application here.

Our resolution of this issue makes consideration of appellant’s other contentions unnecessary. The district court’s dismissal of this appeal is AFFIRMED.


author: HENRY, Circuit Judge.

text:
    Lorraine VILLANUEVA, on behalf of herself and her minor children, Delores Villanueva, Kayla Villanueva, and Esteban Villanueva; Jennie M. Vasco and Claude L. Vasco, on their own behalf and on behalf of their minor child, Marie Vasco; Bernadette Villalon, on behalf of herself and her minor children, Jason Villalon and Ian Villalon; and collectively on behalf of all others similarly situated, Plaintiffs/Counter-Defendants-Appellants/Cross-Appellees, v. Warren D. CARERE, President and Member, Board of Education for Pueblo School District No. 60, Dennis Flores, Mary Lou Jackson, Abel J. Tapia, Judy Weaver, Members, Board of Education for Pueblo School District No. 60; Board of Education for Pueblo School District No. 60, Defendants-Appellees/Cross-Appellants, and The State of Colorado ex rel. Gale A. Norton and the Colorado State Board of Education, Defendants-Intervenors-Counter Claimants-Appellees. Colorado League of Charter Schools, Amicus Curiae.
    Nos. 94-1454, 94-1479.
    United States Court of Appeals, Tenth Circuit.
    June 4, 1996.

      Margaret L. Herdeck, Pueblo, Colorado (J.E. Losavio, Jr. and Peter S. Blood, Pueblo, Colorado, and William S. Barber of Pueblo County Legal Services, Inc., Pueblo, Colorado, with her on the briefs), for Plaintiffs-Counter Defendants-Appellants/Cross-Appellees.
    Franklin A. Nachman (Martin Semple with him on the brief), of Semple & Jackson, P.C., Denver, Colorado, for Defendants-Appellees/Cross-Appellants Warren Carere, et al.
    William E. Thro, Assistant Attorney General, Denver, Colorado (Gale A. Norton, Attorney General of Colorado, with him on the brief), for Defendants-Intervenors-Counter Claimants/Appellees the State of Colorado ex rel. Gale A. Norton and the Colorado State Board of Education.
    James W. Griffin, Lakewood, Colorado, on the brief for Amicus Curiae the Colorado League of Charter Schools.
    Before PORFILIO, HENRY, and BRISCOE, Circuit Judges.
   HENRY, Circuit Judge.

Plaintiffs-appellants, a class of Hispanic parents and their children (the Parents), brought this action to enjoin the closing of two Pueblo, Colorado public schools and the opening of a charter school pursuant to the Colorado Charter Schools Act, Colo.Rev.Stat. §§ 22-30.5-101 to -114 (the Act). The Parents alleged that the decisions of defendantappellee the Board of Education for Pueblo School District No. 60 (the Board) to close the schools at which their children were enrolled and, three months before, to approve the opening of a charter school had deprived them of their Fourteenth Amendment right to equal protection of the laws and of those rights guaranteed by Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-4a. In addition to raising various other claims, which they have not pursued on appeal, the Parents also challenged the constitutionality of the Charter Schools Act under the Equal Protection Clause. The State of Colorado and the Colorado State Board of Education intervened to defend the Act.

Following a five-day hearing, the district court denied the Parents’ motion for a permanent injunction, finding that they had failed to demonstrate: (1) that the Board had intentionally discriminated against them; (2) that the Parents would suffer a discriminatory impact as a result of the Board’s actions; or (3) that the Charter Schools Act violated the Constitution. We affirm.

The issues for review are (1) whether the Parents met their burden of proving either discriminatory intent, as required for a violation of the Equal Protection Clause, or discriminatory impact, as required for a claim under the implementing regulations of Title VI, with respect to either the school closings or the Board’s approval and operation of a new charter school under the Charter Schools Act, and (2) whether the Act is on its face discriminatory in violation of the Equal Protection Clause.

I. BACKGROUND

Pueblo School District 60 (the District), comprised of some thirty-three elementary, middle, and high schools, an alternative school, and a day care facility, enrolls approximately 18,000 students of whom almost exactly 50% are Hispanic and about 64% are minorities. In recent years, the District has experimented with innovative approaches to education, forging an educational and administrative alliance with the University of Southern Colorado to improve educational quality and allocate resources more efficiently. As required by Colorado law, District 60 operates under a “schools of choice” system, in which parents may send their children to any school in the District, see Colo.Rev.Stat. §§ 22-36-101 to -106, although free transportation generally is not provided to those who choose to attend schools outside their neighborhood.

The Colorado Charter Schools Act authorizes local school boards to contract with interested parties to establish charter schools — public schools that are managed by their sponsors and financed primarily with the local school district’s funds. See Colo. Rev.Stat. §§ 22-30.5-101 to -112. In late 1993, the University of Southern Colorado submitted to the Board an application to establish in District 60 a charter school known as Pueblo School for Arts and Sciences (PSAS), which proposed to use nontraditional pedagogic methods to address especially the needs of “at-risk” and minority students. See Aplts’ App. at 45. The proposal asserted the sponsors’ commitment to admit a student body reflecting the make-up of “the educational community of Pueblo in terms of gender, ethnicity, and economic status,” to use “targeted recruitment” “only to maintain a balanced and diverse student body,” and to admit students on a first-come, first-served basis, without regard to test scores. Id. at 46. The sponsors emphasized the importance of a strong “community/school partnership,” id. at 44, by requiring parents annually to perform eighteen hours of service to the school, id. at 48. In December 1993, the Board voted pursuant to its authority under the Act to approve the application of PSAS.

The administrators of PSAS sought to ensure geographic and ethnic diversity by dividing District 60 into eight regions for purposes of soliciting enrollment applications; students were admitted on a first-come, first-served basis within each region. Application forms notified parents of the community service requirement, a mandatory pre-admission parental interview, and the requirement that parents provide transportation for their children, and informed parents that admission was to be based upon commitment to the school and not upon previous student performance. The forms also requested information about parents’ place of employment. See id. at 78-79.

In practice, no parental interviews were held until after admission. Community groups publicized the charter school among the Hispanic community in Pueblo. In its first year, 1994-95, the projected enrollment at PSAS included 52% Hispanic students and 62% minority students. Aplees’ App. at 78.

In February 1994, three months after the vote to approve PSAS, the Board voted to close Hyde Park Elementary School and Spann Elementary School. Approximately 75% of students in each school were Hispanic. The issue of school closures had been before the Board for three years.

Both schools hosted programs for “at-risk” students, including federally funded breakfast and lunch programs and school-wide Chapter I programs that contributed to maintaining pupil-teacher ratios below the District average. In addition, Hyde Park was one of eighteen schools chosen nationwide to host a Parent Resource and Involvement Strength Education (P.R.A.I.S.E.) program, which successfully encouraged broad parental involvement at the school.

In deciding which schools to close, the Board considered primarily four factors: (1) the present and projected enrollment at the schools to be closed and (2) at nearby schools; (3) the percentage of space utilized; and (4) the total cost per student. The Board did not directly consider the impact of school closures on the surrounding communities or the quality of educational programs at the schools chosen for closure.

Of the students formerly attending Hyde Park and Spann, most were to be transferred to other schools consisting predominantly (over 70%) of minority students. In turn, to make room for the incoming students, one of the “receiving schools” was to transfer about forty-four students to another predominantly minority school. While many of the former Hyde Park and Spann students were to be bussed, some would be able to walk to school; some of the latter would now, unlike in the past, have to cross busy intersections. In deciding where to transfer these students, the District considered factors including the proximity and capacity of receiving schools and the desire to have former Hyde Park and Spann teachers follow the students. The District planned to transfer the P.R.AI.S.E. program to one of these receiving schools and also to have Chapter I funding follow qualifying Hyde Park and Spann students to the receiving schools.

II. DISCUSSION

Following a five-day hearing, at which thirty witnesses testified and over 200 exhibits were offered, the district court issued a twenty-page Memorandum Opinion and Order concluding that the Board did not intentionally discriminate against Hispanics, either in the decision to close Hyde Park and Spann or in its approval and oversight of PSAS, and that the Parents failed to establish that the school closures would have a discriminatory impact on Hispanic students. See Aplts’ App. at 261-62. The court also upheld the constitutionality of the Charter Schools Act against the Parents’ Equal Protection and Due Process attacks. See id. at 280, 285.

A. Discriminatory Intent

Proof of racially discriminatory intent or purpose is required to demonstrate a race-based violation of the Equal Protection Clause. Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). The discriminatory purpose need not be the only purpose, but it must be “a motivating factor in the decision.” Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977).

As the parties properly acknowledge, we may reverse the trial court’s finding of no discriminatory intent only if it is clearly erroneous. See, e.g., Dowell v. Board of Educ. of Okla. City Pub. Schs., 8 F.3d 1501, 1518 (10th Cir.1993) (applying clearly erroneous standard to a finding of no discriminatory intent by a school board). Not only is this standard of review well-established, but its rationale is exemplified by a case such as this one. The district court heard extensive testimony before making its factual determinations, which included findings that the defendant Board members did not intend to discriminate against Hispanic students, Aplts’ App. at 261, and that they were sincere in their stated purpose of striving to improve the quality of education in the District, id. at 263. Findings such as these, based on the trial court’s determination of the credibility of witnesses, demand of the appellate court a heightened degree of deference. See Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).

Although the Parents presented no direct evidence of discriminatory intent, the district court’s inquiry could not stop there. “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights, 429 U.S. at 266, 97 S.Ct. at 564. The Parents’ claim that discriminatory intent was a motivating factor in the school closings decision rests principally on four allegations: that the closures resulted in overcrowded classrooms in the selected receiving schools; that the Board failed to consider the high quality of the educational programs offered at Hyde Park and Spann or the impact of school closings on the affected communities; that the Board did not make adequate arrangements to ensure that the P.R.A.I.S.E. program and high levels of parental involvement would be maintained after the closures; and that the Board improperly took into consideration the ethnic mix of the closed and receiving schools. See Aplts’ Br. at 30.

However, the evidence concerning these allegations, when viewed in concert with “the totality of the relevant facts,” see Davis, 426 U.S. at 242, 96 S.Ct. at 2048, is insufficient to lead us to conclude that the district court’s finding of a lack of discriminatory intent was clearly erroneous. Indeed, several of the Board members and the Superintendent are themselves Hispanic, see Tr. at 102, 459, and have notable records of commitment to the Hispanic and minority communities of Pueblo, id. at 113-14, 305-06, including long years of service to the plurality-Hispanic District 60, id. at 187-188, 459. The Parents’ separate claim of discriminatory intent in the implementation of admissions procedures for PSAS similarly rests on circumstantial evidence which, in the face of the clear purpose of the charter school and its admissions procedure — to serve at-risk students and to admit a broad cross-section of the community— is inadequate to lead us to a different conclusion than that of the district court.

Because the district court correctly found that the Board did not intentionally discriminate against Hispanic parents, we hold that it properly found for the appellees with respect to the Parents’ equal protection claims.

B. Discriminatory Impact

The Parents also argue that the school closures and the implementation of the PSAS admissions procedure violated their right under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-4a, to be free from discrimination “under any program or activity receiving Federal financial assistance,” id. § 2000d. Although Title VI itself proscribes only intentional discrimination, certain regulations promulgated pursuant to Title YI prohibit actions that have a disparate impact on groups protected by the act, even in the absence of discriminatory intent. Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 584 n. 2, 103 S.Ct. 3221, 3223 n. 2, 77 L.Ed.2d 866 (1983).

The district court found that the Parents had failed to demonstrate that the school closures would have a. discriminatory impact on Hispanic students. The proper standard of review of such a determination concerning disparate impact depends upon the basis of the alleged error. When the district court allegedly has used the wrong groups as the basis of a statistical comparison, we have employed plenary review. See Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1244 n. 29 (10th Cir.1991). By contrast, when the dispute involves “[u]nderlying factual findings” the disparate impact determination of the district court is undisturbed unless clearly erroneous. See id. Here the Parents do not allege any error in the district court’s method of analysis. In fact, they did not assert a traditional disparate impact claim, which would have involved a comparison of the statistical impact of the Board’s decisions on the class allegedly harmed, i.e. Hispanics, relative to a relevant comparison group. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992, 108 S.Ct. 2777, 2787, 101 L.Ed.2d 827 (1988) (plurality opinion) (citing “the inevitable focus on statistics in disparate impact cases”); Ortega, 943 F.2d at 1242 (explaining that a prima facie disparate impact discrimination case requires a showing that the challenged policy caused “a significant disparate impact on a protected group”). In rejecting the Parents’ broadly pleaded disparate impact claim, the district court made factual findings supporting its conclusion that there had been no demonstrated adverse impact on Hyde Park and Spann students as a group, regardless of ethnicity. Because it is these findings which the Parents challenge on appeal, our review is for clear error. See Ortega, 943 F.2d at 1244 n. 29.

Upon a careful examination of the record, we cannot say that the district court’s findings were clearly erroneous. The schools to which the student appellants were transferred had facilities comparable to those of the closed schools and, although the testimony indicates some confusion about this, we conclude that the court did not err in determining that the receiving schools would not be over-crowded. See Aplts’ App. at 279; Tr. at 409, 443-49. Moreover, Chapter I funding and the P.R.AI.S.E. program were to follow qualified students to the receiving schools. Significantly, that the transfers resulted in high percentages of at-risk and minority students at receiving schools has little relevance to the issue of disparate impact because Hyde Park and Spann, the very schools that the appellants have fought to resurrect, themselves enrolled high percentages of such students.

We briefly respond to the Parents’ argument, not directly addressed in the district court’s order, that Hispanic students were disparately impacted by the opening of PSAS. Clearly this cannot be the case, as the uncontroverted evidence shows that the 1994-95 projected enrollment at PSAS was about 50% Hispanic, compared with approximately the same proportion of Hispanic students in the district-wide population.

Because the district court’s findings that neither the school closings nor the opening of PSAS resulted in a negative disparate impact on the Hispanic population is not clearly erroneous, we hold that the court correctly found for the appellees with respect to the Parents’ Title VI claims.

C. The Colorado Charter Schools Act

We conduct plenary review of the district court’s determination that the Parents have failed to establish that the Charter Schools Act passed by the Colorado legislature violates the Equal Protection Clause of the Fourteenth Amendment. See Patton v. TIC United Corp., 77 F.3d 1235, 1245 (10th Cir.1996). We begin our review with the venerable presumption that the acts of a state legislature are constitutional. See Parham v. Hughes, 441 U.S. 347, 351, 99 S.Ct. 1742, 1745-46, 60 L.Ed.2d 269 (1979) (employing the presumption of validity against a challenge under the Equal Protection Clause). Moreover, courts pay particular deference to the states in decisions involving “the most persistent and difficult questions of educational policy” because our “lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42, 93 S.Ct. 1278, 1301, 36 L.Ed.2d 16 (1973). “The very complexity of the problems of financing and managing a statewide public school system suggests that ‘there will be more than one constitutionally permissible method of solving them,’ and that, within the limits of rationality, ‘the legislature’s efforts to tackle the problems’ should be entitled to respect.” Id. (quoting Jefferson v. Hackney, 406 U.S. 535, 546-47, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 (1972)).

Such deference is abandoned, though, when a legislative act either disadvantages a “suspect class” or impinges upon the exercise of a “fundamental right.” See Plyler v. Doe, 457 U.S. 202, 216-17, 102 S.Ct. 2382, 2394-95, 72 L.Ed.2d 786 (1982). The Parents challenge the provision of the Act that reserves thirteen charters for “applications which are designed to increase the educational opportunities of at-risk pupils,” Colo.Rev.Stat. § 22-30.5-109(2)(a), because they allege that it creates a suspect classification. The Act defines “at-risk pupils” as those “who, because of physical, emotional, socioeconomic, or cultural factors, [are] less likely to succeed in a conventional educational environment.” Id. § 22-30.5-103(l)(a). The Parents argue that the word “cultural” in this definition “is a code-word for ethnic minority,” and that the Act therefore separates and classifies students according to race and ethnicity. See Aplts’ Br. at 31-33. Such criteria are traditionally suspect and would thus trigger strict scrutiny, which is almost always fatal to a classification. See Fullilove v. Klutznick, 448 U.S. 448, 519, 100 S.Ct. 2758, 2795-96, 65 L.Ed.2d 902 (1980) (Marshall, J., concurring).

We share the Parents’ concern with the practice of drawing classifications based on “culture,” which might in some circumstances be used as a proxy for ethnicity, race, national origin or some other suspect classification. However, we believe that, reading the Act in its entirety, it simply does not create any classification of students, and therefore it cannot create a suspect classification. The Act expressly requires of charter schools that “[e]nrollment must be open to any child who resides within the school district” and that “[e]nrollment decisions shall be made in a nondiscriminatory manner.” Colo.Rev.Stat. § 22-30.5-104(3). Moreover, under the Colorado Public Schools of Choice Act, id. §§ 22-36-101 to -106, enrollment in any public school generally is open to any child in Colorado, id. § 22-36-101. Hence, charter schools designed to increase the educational opportunities of at-risk pupils must admit on an equal basis applicants who are not so classified, and, conversely, at-risk students are not required to attend such schools but may attend any public school they and their parents choose. Therefore, even though we might agree in other contexts that treating students differently on the basis of “culture” could trigger strict scrutiny, the carefully crafted provisions of the Act mandating open enrollment and expressly proscribing discrimination convince us that no suspect classification has been created. Because the Act creates no suspect classification, and because no fundamental right is alleged to be affected, the correct standard is whether the challenged state action rationally furthers a legitimate state purpose. McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059-60, 35 L.Ed.2d 282 (1973).

One of the stated purposes of the Act is to allow communities to “create new, innovative, and more flexible ways of educating all children within the public school system.” Colo. Rev.Stat. § 22-30.5-102(3). Colorado has a legitimate interest in encouraging innovation in education. See Rodriguez, 411 U.S. at 50, 93 S.Ct. at 1305 (“No area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public education.”). We hold that the Charter Schools Act is rationally related to that interest.

III. CONCLUSION

We cannot fail to observe the acrimony in this long-standing community battle. Perhaps it comes from the fact that although education is not a “fundamental right” in the United States, good parents nonetheless have fundamental aspirations about the education of their children. Hence it is not surprising that these convictions should produce conflicts that run equally deep. Yet all disagreements cannot be resolved by the federal courts, especially when they relate to local educational policies upon which both warring factions hold deep and sincere beliefs. This question is political, not legal.

Though we do not endorse the district court’s lengthy recommendations, we trust that the parties will carefully examine them for whatever relevance and use they may have to this dispute. Our review is carefully limited by the standards we have employed. Though we may hope that both parties will consider the other’s sincerity and good intentions, and that they will adjust policies and protest accordingly, we have neither the capacity nor the power to act on that hope.

For the foregoing reasons, we AFFIRM the district court’s denial of the Parents’ motion for a permanent injunction and the district court’s order that each party shall bear its own costs.

      . The Act defines an "at-risk pupil” as "a pupil who, because of physical, emotional, socioeconomic, or cultural factors, is less likely to succeed in a conventional educational environment.” Colo.Rev.Stat. § 22-30.5-103(l)(a).

      . Chapter I refers to a federal program, 20 U.S.C. §§ 2701-2976, providing funds to state and local educational agencies "to improve the educational opportunities of educationally deprived children” through provision of "supplemental education programs, schoolwide programs, and the increased involvement of parents in their children’s education,” id. § 2701(b).

      . We note the district court's concern with the "modified first come/first served," Aplts’ App. at 283, admissions procedure that was implemented at PSAS, which seems to favor children of parents with the resources and the acumen to apply early. See id. at 283-85. Though we do not believe this rises to an actionable level, we also note that the federal Charter Schools Act requires schools receiving funds under the Act to admit students on the basis of a lottery, see 20 U.S.C. § 8066(1)(H), indicating that Congress apparently shared the district court’s concern.