Oil, Chemical & Atomic Workers International Union Local 5-391 v. Conoco, Inc.

capable so that it meaningful plaintiffs is review. failure to consider limitation The ALJ’s decision in the present case based on diagnosed her osteoarthritis provides this court with that no evidence assessing her RFC also infected the ALJ’s plaintiffs impairment her hands was findings credibility and further analysis considered along fibromyalgia with her under step Accordingly, four. we do not gastrointestinal problems. The ALJ plaintiffs arguments address additional on charged with carefully considering all of note, however, points. these We that on the relevant linking evidence and his find sufficiently remand ALJ must make ings specific evidence. v. Cha Clifton specific findings each of relevant his ter, (10th Cir.1996) 79 F.3d 1009-10 capa determinations so that his decision is (holding record “[t]he must demonstrate meaningful ble of review. See Luna v. that the ALJ considered all of the evi Bowen, (10th Cir.1987) 834 F.2d dence,” and, every while he needn’t discuss (describing proper analysis for evaluat evidence, piece of the ALJ must “discuss[ ] ing subjective complaints pain); Win decision, the evidence supporting his ... frey, 92 F.3d at 1023-25 (describing, the uncontroverted evidence he chooses detail, the phases three of Commissioner’s rely upon, not to significantly proba [and] step-four analysis). When, here, rejects”). tive evidence he provide any an ALJ does not explanation IV. evidence, rejecting significant medical speculate we are “left to specific what evi of the United States Dis- conclusion],” dence led the ALJ to [his trict Court for the Northern District of Chater, (10th Kepler v. 68 F.3d REVERSED, Oklahoma is and the case is Cir.1995), thus, meaningful we cannot REMANDED with directions to remand ly review the ALJ’s determination. See the action to the Commissioner for further Clifton, 79 F.3d at 1009. While there proceedings consistent with this order and be substantial evidence from which the judgment. might plaintiff

ALJ conclude that disabled after careful consideration of her impairment,

additional “we are not in a position to draw factual conclusions on be Massanari, Drapeau

half of the ALJ.” (10th Cir.2001) 1211, 1214 (quota 255 F.3d omitted). tion We believe that the need for sufficient reasoning especially acute case,

in this where the ALJ has concluded plaintiff the capacity perform has occupation work exten requires sive of one’s use hands.3 OIL, AND CHEMICAL ATOMIC INTERNATIONAL impairment

Failure to consider a known WORKERS UN is, 5-391; Oil, Local conducting step-four inquiry ION LOCAL 5-857 itself, grounds Washington, for reversal. Chemical & Atomic Interna Workers case, Union, 37 F.3d 1440. the ALJ’s tional sued as: Chemical that, impairment We note while the use of vocational were considered in this four, testimony working expert required step likely preclude would her testimony indicating processor pianist. Aplt. App., data the record includes such or as See that, plaintiff's impairment if to her hands Vol. II at 130. International Un & Atomic Workers (AFL-CIO) 5-857, and its Local

ion Plaintiffs-Ap Organizations, Labor pellees-Cross-Appellants, corporation,

CONOCO, INC., a Delaware nt-Appellant Defenda -Cross-Appellee. 01-5222, 02-5000. Nos. Appeals, States Court United Tenth Circuit. 7, 2003.

May TACHA,

Before Judge, Chief LUCERO *, Judge Circuit and ROBINSON District Judge. AND

ORDER JUDGMENT** LUCERO, F. Judge. CARLOS Circuit previously This case has been before us. Oil, Chem. & Atomic Workers Int’l Union Conoco, Inc., (10th 241 F.3d Cir.2001). remand, Following our the dis parsed trict court parties claims as to arbitrability of union grievances under several collective-bargaining agreements (“CBAs”), and referred certain issues to arbitration while holding others not arbi trable as matter of law. nowWe consid Conoco, cross-appeals er from both Inc. (“Conoco”) Chemical and Atomic Workers International Union (AFL-CIO) (“the and its Local 5-857 Un ion”). Exercising jurisdiction pursuant to § affirm part U.S.C. part. reverse in

I

Under, separate terms of three CBAs, the Union griev filed numerous Conoco, against ances challenging, inter alia, handling job of certain re City, ductions at its Ponca Oklahoma refine ry.1 Each CBA contains a enti Grievances,” tled “Settlement of provides: * Robinson, judgment may The Honorable Julie A. United be cited under the terms Judge States District for the District of Kan- and conditions of 10th Cir. R. 36.3. sas, sitting by designation. collective-bargaining agreements 1. The three ** binding pre- This order and include; (1) (2) "Refinery Agreement”; cedent, except under the law doctrines of “Technology Agreement”; judicata, estoppel. res and collateral Agreement.” "Clerical generally This court disfavors the citation of nevertheless, judgments; orders and an order brought suit July or be- dispute A is a conflict Conoco, compel arbitra- seeking against Company and the Union as to tween the In a Joint State- grievances. tion of application or Classifications, the ment as Grievance Agreement. terms of this sep- into four placed catego- first three categories. The arate arising Only differences between relate to Conoco’suse ries of in- Company relating Union and the City, at its Ponca Okla- contract workers terpretation performance category fourth refinery, homa while the adjusted by be Agreement which cannot non-bargaining-unit of a relates the use gone and agreement mutual have clerical work. perform member to certain ar- through grievance procedure the are 20, 1999, the district court issued May On bitrable, provided in except as otherwise to grievances an order ah the arbi- sending this Agreement. determining arbitrability. tration without Oil, Int’l Union 94-95.) Chem. & Atomic Workers (Appellant’s App. at the When 97-CV-682-H, Conoco, Inc., shp op. No. the parties not settle grievances could 1999). (N.D.Okla. 20, However, May at 2 initial through grievance procedure the and Tenth vacated remanded the Circuit CBAs, requested outlined order, was that Conoco enti- refused, the citing arbitration. Conoco arbitrability of the to a on the ruling tled Rights” provision “Management’s con- being compelled grievances before Union’s CBA, provides: tained in which each submit arbitration. Chem. & to under originating Grievances Man- [this Union, 241 Int’l F.3d at Atomic Workers agement’s subject are Rights Clause] remand, court deter- 1301. On the district procedure the but be grievance cannot (1) that: grievances Category mined arbitration; and arbiter submitted to no arbitrable, are and Category One and Two authority has to rule on [this clause] the arbitration; (2) must be submitted to the exception of determination of (3) moot; is and Category grievance Three just cause.... not Category grievances Four are arbi- (Id. added).) (emphasis In each of 71 law. Conoco now trable as matter of CBAs, Management’s Rights court’s determination appeals district Clause forth certain functions that sets Category One Cate- grievances responsibility manage- are of “solely the arbitrable; Union, Two on gory are ment,” including “[h]iring, maintaining or- cross-appeal, argues der, discharge” “the discipline Category Four should Category Three and assignment subject other only of work sent arbitration. also be (Id. Agreement].” at 70 [the of II added).) Thus, the (emphasis CBAs subject to the arbitration question novo the We review de entirety, except process griev- in their whether a is arbitrable under dispute “originating” Manage- ances under agreement. cohective-bargaining O’Con Inc., Co., Rights ment’s Clause. Conoco refused 965 v. R.F. & F.2d Lafferty nor (10th Cir.1992). requests 893, for arbitration on the In determining Union’s 901 theory agreed each of the filed have arbi whether issue, Manage- guided under the trate an we are certain “originates” First, “arbitration ment’s without well-established rules. Rights impheating Clause party a matter and a cannot other of contract terms of CBA. 182 mind, required to arbitration we con- principles

be to submit With these categories sider the four of grievances. dispute agreed which he not has so to submit.” United Steelworkers Am. v. Ill Co., Navigation & Warrior 363 U.S. Gulf two categories The first relate 574, 1347, 582, 80 4 L.Ed.2d S.Ct. Conoco’s use of contract workers at its (1960). rule, “following] The second inex refinery. City, Ponca Oklahoma Conoco first,” Techs., orably from AT & T Inc. argues of contract that its use workers Am., v. Communications Workers governed by Article 12 of Refin solely 643, 649, U.S. 106 S.Ct. 89 L.Ed.2d ery Management’s Rights Agreement, the (1986), question is that “the arbitra CBA, gives Clause of this particular bility judicial issue for determination the Union the to transfer right parties clearly [u]nless unmistak assign dispute and to Because the work. otherwise,” ably provide Howsam v. Dean Rights originates Management’s under Inc., Reynolds, Witter U.S. Clause, argues, this issue is 591, 154 L.Ed.2d 491 S.Ct. arbitrable as matter of law. In re (alteration omitted). in original) (quotation sponse, emphasizes the Union that under Third, in reviewing parties’ grievances, Clause, Management’s Rights Conoco’s potential the court is not to rule on the rights “subject ... to other provisions are T, merits AT underlying of the claims. & Agreement.” (Appellant’s App. at [in the] Supreme 475 U.S. at 649. theAs Court 70-71.) presented, there question The noted, not, ‘arguable’ has or “[w]hether fore, right whether to transfer if appears indeed even it to the court to be in assign work this instance is indeed frivolous, the claim that union’s em by Agree [in limited “other the] has ployer collective-bargain violated the (Id.) ment.” decided, agreement ing is to be not Union, According to the Article 36 of arbitration, asked to order but as the right Refinery Agreement limits Conoco’s agreed, have the arbitrator.” work in important contract out two Id. 649-50. there is a Finally, presump ways, concerning rendering dispute arbitrability, meaning that an tion “or Conoco’s use of contract workers arbitra- particular grievance der arbitrate the First, provides: ble. Article 36 should not be denied unless it be said agrees not Company that it will positive that assurance the arbitra per- into the bring plant contractors susceptible clause is not of an tion inter if production form maintenance work pretation that asserted dispute. covers the lay-off regular, it in the will result should Doubts be resolved favor of cov employees. full-time added) erage.” Id. (emphasis (quo at 650 (Id. 97.) In instant employees omitted). “[0]nly tation the most forceful service, but were not from separated of a to exclude purpose evidence the claim general pool. transferred into labor prevail.” from arbitration can Id. at 651 “lay-off,” term used Concluding that the omitted). (quotation principle “recog This Agreement, “unequivocally requires nizes the greater competence institutional service,” the district separation from interpreting of arbitrators collective- in Arti court found that the first limitation & bargaining agreements.” implicated.2 Id. at 650. cle 36 not Chem. was REGULAR, provides: FULL-TIME 2. Article 8 TERMINATION OF TO FORCE REDUCTION EMPLOYEES DUE Conoco, (including position position Int’l different Atomic Workers Union laborer), number. Inc., 97-CV-682-H, employee at 6 his slip op. that loses No. (N.D.Okla. 19, 2001). contract subsequently the Un hires a Nov. If While been there have from ion does not contend that fill the in the craft slot worker service, from it nevertheless separations just trans- employee was the Union maintains that because Union ferred, because implicated Article 36 is not there have given lower-paying jobs, were long- no Union-represented employee Arti lay-offs implicating been constructive Because a number in the craft. er holds the term disagree. Insofar as cle 36. We implicated, argues not Cono- Aticle 36 is Refinery clearly “lay-off’ is used co, management’s is no limitation on there indicate Agreement separation matter is Article 12 and the rights under service, present a condition not as a of law. not arbitrable matter there need to send grievances, is no argues response, In conclude this issue arbitration. We nugatory would interpretation render in Ar limitation first limitation on use of contract second and, thus, unnecessary the griev ticle 36 is would in Article because it workers question are arbitrable under ances destroy the Un- effectively allow Conoco to as a matter of law. em- Union-represented all by replacing ion A second limitation contained holding a in a craft with number ployees provides: Article 36 in- A reasonable contract workers. more addition, maintenance craft work will ar- of Article terpretation long not be contracted as as there employ- long that “so there are gues, is holding in crafts employees numbers the craft, particular numbers in a ees working in which work is contracted (Id. in will work that craft.” no contractor laborers.3 21.) at 97.) at (Appellant’s App. According inquiry our is limited to decid- interpretation Because provision, of this which Union-represented arbitrability, is re- we do not decide employee ing when a Ar- stronger. from his craft to a is the Under interpretation moved and transferred off, give days’ employee the Company ployees shall are laid the with The prior reg- written notice to the termination of regular, recent date full-time status most of ular, employees full-time due to a force reduc- employee bargaining in the who is a unit During 90-day period, Compa- tion. the the Ponca, City force Refinery the time of the at ny will discuss this matter with the Union for employee laid will be first reduction the ways purpose determining of and means the off.... lessening avoiding force of the reduction or 96.) (Id. at employees the the effect on involved. City Refinery bargaining unit Ponca The assigned person “holds a if he is 3. A number” regu- employee with the most recent date of department or position recognized in a lar, employee full-time status will be the first craft, refin- is referred to at the Conoco which laid-off. "progression (Appellant’s ery unit.” 69.) App. at (Appellant’s 51.) App. progression Each unit consists explains procedure Article the numbers” employees: two kinds of "full of accomplished: layoffs and recalls are be progression, who are full-time workers in LAYOFF AND RECALL people "replacement numbers” who and event of a in the 34-1 In the force reduction are not fill in when the full numbers who casual, City Refinery, temporary, and Ponca (Id. 21.) "Holding numbers” available. bargaining probationary replacement num- to full numbers and refers be laid all unit will off first. After casual, (Id.) temporary, probationary em- bers. and Refinery Agreement, potentially dispositive gateway question tide 31 of the dif- arising ferences between the of ... ‘question arbitrability,’ purposes for relating interpretation to the or rule, of applying interpretive performance Agreement (except for of phrase ‘question arbitrability’ of has a far those Ar- disputes “originate” under scope.” more limited Id. at 592. For 12) ticle com- are arbitrable. Given these Howsam, Supreme in example, Court limi- peting interpretations of the second held that the issue of whether statute keeping tation in Article mind question of run limitations has is a for the T, AT presumption arbitrability, of & arbitrator, notwithstanding the fact that an say 475 U.S. at we are unable III easily Article court could have inter “with arbitra- positive assurance that the applied preted the NASD rule tion not susceptible clause is of inter- circumstances In inventory of that case. pretation that covers the dis- asserted “questions ing the issues that are Thus, pute,” id. conclude arbitrability” subject to review district was find that an correct to i.e., notice, courts, limits, laches, time the second limitation did estoppel, Supreme not ad Court necessary Article 36 is resolve Nevertheless, mootness. it is dress evi grievances at issue. inquiry assessing dent that the involved a statute whether of limitations has run IV (when a cause of has accrued action Category Three is akin expired) inquiry to a mootness presents precisely the same issue we con (when viable) longer a cause of action nois above, Categories sidered in One and Two determining questions for purposes in one difference: the individual arbitrability.4 Palmer, volved, longer em Virgil is no Furthermore, Howsam, fact, ployed coupled with the Court by Conoco. This only remedy sought fact that the phrase noted that the of arbitra- “question “recognize Palmer was that Conoco Mr. kind of bility” limited to “the narrow seniority him ranking keep Palmer’s contracting parties circumstance where transportation progression,” the led the likely a court expected would have to de- griev district court to conclude that the gateway cide the Id. While the matter.” ance is moot and therefore not arbitrable Refinery Agreement not specifically does as a matter law. Atomic of Chem. & questions who address should decide of Union, at slip op. Workers Int’l 7 mootness, the Court Supreme has held (N.D.Okla. 2001). Nov. faced that when with a broad arbitration clause, as we “only are the instant the that appeal, argues On Union the forceful of a purpose the most evidence to question issue of mootness is itself a pre- the claim can exclude from arbitration In should be resolved an arbitrator. T,& at vail.” AT 650. We can U.S. the of moot considering question whether par- evidence that the suggest find no to “question arbitrability,” ness of How is intended, sam, at-, nearly to send agreeing at ties 537 U.S. S.Ct. arbitration, ques- call that the although might any note that “one all to Howsam, particular generally suggest the of limita- to time-limit rales that the statute only to was a NASD rule. Court's is not limited those tions involved time-limit particular bearing belonging While this had some on the time-limit rales to arbi- fact determination, body. the tral Court's Court’s references “subject Agreement is sion the Clerical grievances were tion of whether those Agreement.” of this ... other be sent arbitration. moot should also 1 and 5 that Articles argues The Union tightly circumscribed role that Given limit and provisions” “other constitute such ar- determining courts are assigned jobs delete create ability to and Conoco’s bitrability, considering and that arbitrators Article 5 of the Clerical under Article 16. equitable powers fashion have broad Agreement is entitled “Job Classifications remedies, it is not for us to decide that a Pay,” appen- incorporating Rates particu- remedy will not be available for a job with classifications listing dices various herein, grievance. lar As discussed Article of corresponding pay. rates of underlying dispute regarding Article 36 “Recog- is Agreement the Clerical entitled issue presents interpretation of for nition,” provides: arbitrator and must be sent arbitration. hereby recognizes The Company fealty Supreme prece- our Court While repre- sole and Union as the exclusive hyper-tech- stand us accused of dent purposes of collective for the sentative nonetheless, nicality, we conclude that pay, respect to rates of bargaining with question of mootness also a for the issue employment, and other wages, hours of arbitrator, of reverse em- employment, for the conditions district court on issue. All ployees ... UNIT: INCLUDED: V offices clerical Oklahoma, City, Inc.’s refin- Ponca Category two griev Four contains ery. ... arising Agree ances under the Clerical instance, (Id 137.) In the ment. first Concluding there challenges position posting nothing requires in Articles or 5 that Analyst” company’s “Yields Candi such that an arbitrator system grounds date Generation on the grievance necessary to decide whether this responsibilities listed Management’s “[t]he falls arti- Rights within the position currently performed by Agreement, district cle the Clerical represented employees in the De Yields Four Category to send refused partment” and must therefore “continue agree to arbitration. We represented personnel.” (Ap be filled nothing There is simply this conclusion. 251.) pellant’s App. Conoco refused to places Articles 1 5 that limitation on grounds arbitrate the on the right to create and define Management’s Rights portion Thus, that the Analyst position. Yields because Agreement, the Clerical Article makes arguably Articles 1 and 5 not even jobs, clear that deletion and creation of implicated, interpret there is to nothing right including any part to discontinue and the cannot to grievance be submitted activities, or all of the office and clerical a matter of arbitration as law. management’s rights, a within Conoco’s Category The in Four grievance second fact that Union does contest. involves an incident which a non-Union Thus, argues employee retire- prepared distributed solely Management’s originates under the books, function main- ment a subject arbi Rights Clause and is not only be strictly tains is clerical and can tration. performed by represented employee. a concedes, however, that in the other dis- The Union distri- previously As CBAs cussed, Rights per- of retirement has been Management’s provi- bution books

186 1 by management-level employees agree majority formed 1 Paragraph that, past, implicated under Article on the facts df this Cono- case because, assign contrary co has the right work unless Union’s conten- tion, employees place other in the CBA a none of the involved limita- management’s grievances tion on was laid off. In the rights Conoco’s issue Union, Refinery Agreement, “lay-off’ the term According context. to the re- however, represent separation and 7 fers to a from service. Articles 5 such Because provisions” “other and limit the Union did not even contend that pow- Conoco’s er under issue separated Article 16 in this situation. Arti- were service, job cle 5 lists properly classifications and Article 7 the district court allows held that vacancies to be filled those did not arise seniority. After under parties’ Paragraph Accordingly,.the careful review of the Cate- argu- gory ments 1 and 2 grievances and the relevant articles in are not arbitrable CBA, we conclude Articles 5 and as matter of law.

place no on Manage- limitations majority’s Contrary holding, to the how- ment’s Rights relevant to the challenged ever, 2 does not Paragraph apply either. conduct, interpretation by and no an arbi- First, why it is not to me an clear ostensi- Thus, trator required. we affirm the ble difference of as to the district court’s refusal to send this griev- literal, unglossed meaning of Paragraph ance to arbitration. is sufficient to force arbitra-

tion, while an ostensible difference of in- terpretation meaning “lay-off as to the VI in Paragraph majority The is not. relies reasons, For the foregoing (Para- on plain meaning of Article 36 of the district court is AFFIRMED in part 1), graph Article and Article 34 to hold part. REVERSED in griev- as matter of that none of the law 1; so, Paragraph ances arises pre- under TACHA, Judge, Chief Circuit dissenting sumably the distinction lies the degree in part. of certainty with which we establish that the of each plain language join I, I opinion the court’s as to Parts grievance. does or does not support But II, IV, I respectfully and V. dissent as to just plain meaning Paragraph as Part III. clear, 1; me, Paragraph that of in- The that the argues deed, beyond look Paragraph we need not Categories originate 1 and 2 under Article 2 itself to hold matter of law that as a none 36, which states: us grievances before arises under it. [Paragraph Company agrees 1] only Paragraph “employees applies bring that it will not contractors into the in the crafts in which numbers plant to perform production or mainte- “working work is contracted” who are nance work if result in the lay-off it will words, laborers.” other unless regular, employees. full-time in a employee holding particular a number (2) addition, craft is a laborer [Paragraph working mainte- as elsewhere 2] (3) will in the refinery nance craft work not be contracted when contractors are craft, 2 long employees holding Paragraph as as there are hired to do work in that and, law, in as a matter implicated numbers in the crafts which work is is not of grievance as no arises thereunder. Because working contracted laborers.

187 necessary single interpretation of Article 36 is point has failed to to a an (1) express under the dispute, who a number resolve this employee was to (3) Refinery working as a laborer when of Article 31 of the while hired in relevant for an Agreement contractors the issue is arbitrator Conoco craft, pre- 2 Paragraph implicated only question on Id. at 7. decide.” un- facts of this case. arises grievance is whether the sented Be- of Article 36. plain language der the declining any to the By give effect not, reason clearly there is no cause it does “working as laborers” the district words of from the ambit to remove the issue majority and impermissibly Indeed, necessary if all that is Article beyond plain Paragraph broaden its to force Conoco to arbitra- for the Union meaning. The court stated that district allegation that a tion is bare in reading of [Paragraph 2] Conoco’s 12—i.e., it Article arises outside of company allows the to transfer effect of some other requires “interpretation” Union-represented employees po- to the any Article—there never be call would laborer, immediately re- sition of language, the contractual us examine them be- place with contract workers every grievance would be de facto cause, from of the moment transfer of we think arbitrable. Whatever thereafter, Union-repre- there was no Paragraph simply cannot rewrite sented with number to suit CBA ourselves. interpretation, craft. Under limitation is imposed [Paragraph 2] By repeating the Union’s claim that Co- meaningless. rendered permit noco’s will Conoco attrition, majori- destroy the Union & Atomic Int'l Union Chem. Workers ty made the same error appears have Inc., Conoco, 97-CV-682-H, op. slip No. Maj. at 9. The op. the district court. (N.D.Okla. 19, 2001) (emphasis at 6-7 Nov. inter- ostensibly more reasonable Union’s added). not, however, It (“so there pretation Paragraph long of “reading” that allows it to par- in a employees holding numbers so; it is plain language do craft, in ticular no contractor will work I no interpretive contract. can discern craft”) what- omits consideration in “in gloss supposed whatsoever Conoco’s of the final three Para- soever words of terpretation.” merely Conoco reiterates laborers”). 2 (“working as These graph contract, plain language unambigu- impose significant words requires that employees holding numbers scope Paragraph limitation ous on in be working a craft as laborers when issue that removes the one contracts work that craft. interpre- They require from its ambit. no say is it provi- Nor accurate that the tation, removing them from consider- entirely meaningless. sion is It is almost meaning drastically plain alters the ation meaningless. repre- In situations where a reason, Paragraph disagree I 2. For employee holding a number sented majority’s statement that “com- refinery working elsewhere craft limita- interpretations of the peting second laborer, as a and work that craft render the relevant tion Article 36” available, prohib- 2 of Article Paragraph grievances arbitrable. hiring to do it. its Conoco contractors that, only Paragraph amply But that is the restriction The record demonstrates outset, believe, therefore, I that the from the the substance of the Un- imposes. Paragraph “since under has stating district court erred ion’s 188 that Article 36 prohibits Seegars, prisoner

been from Marvin custo- hiring dy Department contractors to work “side side” of the Oklahoma of Correc- tions, pro § this with members. However one-sided filed se U.S.C. agreed alleging action Okla- amendments to be, may impossi- delayed such an homa statutes have his consider- Ex parole, thereby violating without ation for pruning ble the final three words Post Facto Clause of the United States Paragraph 2. This do. Seegars Constitution. Mr. a de- sought reasons, For these I respectfully dissent. claratory judgment injunction and an di- recting prison officials to rules promulgate and regulations regarding parole proce- complaint, dures. In his ac- Seegars Mr. knowledged he had not ad- pursued remedies, ministrative but he contended that to do so would be futile. adopted report The district court SEEGARS, Plaintiff-Appellant,

Marvin magistrate and recommendation of the v. judge complaint and dismissed the without prejudice, reasoning that Seegars Mr. had WARD, Defendant-Appellee. Ron J. failed to exhaust administrative remedies. No. 03-6032. noted that Litigation the Prison (PLRA), 1997e(a), § Reform Act 42 U.S.C. United Appeals, States Court of requirement contains an exhaustion Tenth Circuit. ’ cannot “courts excuse the exhaustion 22, May of administrative remedies even if exhaus arguably tion would be futile.” Rec. doc. OK, Seegars, Hominy, pro Marvin se. (Dist. 13, Order, at 3 Ct. filed Jan. Anderson, Ronald A. City, Oklahoma 2003) Nussle, (citing Porter v. 534 U.S. OK, for Defendant-Appellee. 524, 122 S.Ct. L.Ed.2d Stuchell, Jemigan F.3d EBEL, HENRY, HARTZ, Before (10th Cir.2002)). 1030, 1032 Judges. Circuit agree analysis. According- We ly, substantially the same reasons set ORDER AND JUDGMENT* in magistrate’s report forth recom- HENRY, Judge. Circuit order, and the mendation district court’s we AFFIRM the district court’s dismissal examining appellate After the briefs and Seegars’ complaint of Mr. preju- without record, panel has determined unani- dice. mously that oral argument would not aid disposition of this See Fed. appeal. 34(a)(2)(C). P.

RApp. The case is there- ordered oral argu- fore submitted without ment.

* nevertheless, binding prece- judgments; This order and orders and an order dent, except of law under the doctrines judgment may terms be cited under the judicata, estoppel. res and collateral of 10th and conditions Cir. R. 36.3. generally The court citation of disfavors the

Case Details

Case Name: Oil, Chemical & Atomic Workers International Union Local 5-391 v. Conoco, Inc.

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 7, 2003

Citation: 64 F. App'x 178

Docket Number: 01-5222, 02-5000

Court Abbreviation: 10th Cir.