Calderon v. City and County of Denver ( 2021 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 30, 2021
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court
LISA CALDERÓN,
Plaintiff - Appellant,
v. No. 19-1388
(D.C. No. 1:18-CV-00756-PAB-MEH)
CITY AND COUNTY OF DENVER; (D. Colo.)
MICHAEL HANCOCK; PATRICK
FIRMAN; JESS VIGIL; ANDREA
ALBO,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before MATHESON, BRISCOE, and MURPHY, Circuit Judges.
I. INTRODUCTION
For nearly a decade, Lisa Calderón served as Executive Director of the
Community Reentry Program (“CRP”). During that time, CRP administered the
Transition from Jail to Community Program (“TJCP”), a program created by the
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
City and County of Denver (“Denver”) to provide transitional services to adult
Denver residents released from the Denver County Jail and Downtown Detention
Center. CRP was chosen to administer the TJCP in 2007 and this arrangement
was renewed on an annual basis until March of 2018. Denver then chose a
coalition of organizations to replace CRP as administrator of the TJCP. Calderón
brought a 42 U.S.C. § 1983 suit against Denver and several Denver officials
(referred to collectively as Denver), claiming the decision to displace CRP as
administrator of the TJCP violated her First and Fourteenth Amendment rights.
The district court dismissed Calderón’s complaint, concluding she lacked
prudential standing because her claims were derivative of claims belonging to
CRP and/or CRP’s fiscal agent, the Colorado Nonprofit Development Center
(“CNDC”). Calderón appeals, asserting the district court erred in concluding she
lacks prudential standing to bring her constitutional claims against Denver. She
further asserts, although recognizing that she did not directly and clearly raise the
issue below, the issue of prudential standing is not implicated in this case because
(1) CRP was not a distinct entity, such as a corporation, but instead merely the
vehicle by which Denver contracted with her to administer the TJCP and
(2) CNDC had no interest in the contract because it was simply a fiscal agent used
by Denver to disburse funds to CRP.
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This court concludes it is unnecessary to address the difficult and complex
issue of prudential standing because Calderón’s complaint plausibly alleges she is
the contractor and, thus, her claims are not derivative of claims belonging to CRP
or CNDC. 1 This court exercises its discretion to resolve Calderón’s appeal on this
ground, even though it was not clearly and directly raised below. Whether
Calderón’s complaint states a plausible claim that the contract at issue belongs to
her is a question of law. Furthermore, this court’s strong institutional interest in
avoiding the unnecessary resolution of hypothetical and entirely abstract issues of
constitutional magnitude strongly outweighs any countervailing interests against
addressing an issue raised for the first time on appeal. Accordingly, exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we reverse the district court’s order of
dismissal and remand the matter to the district court for further proceedings.
1
In response to Denver’s motion to dismiss, Calderón filed a declaration
under oath, elaborating on factual matters alleged in her Complaint. Denver
responded, but did not challenge the factual testimony in the declaration. Instead,
it asserted those facts did not establish Calderon was a city employee, a matter
that is likely impertinent and, at best, peripheral. For purposes of addressing
Calderón’s claim she was a Denver employee, the district court refused to
consider the material set out in her declaration. Dist. Ct. Order at 18. Notably,
however, there is no hint of an employment relationship between Denver and
Calderón in Calderón’s complaint. See id. As noted below, however, Calderón’s
complaint does plausibly allege her claims are not derivative of claims belonging
to either CRP or CNDC because she was a direct Denver contractor. In that
limited regard, the uncontested allegations in her declaration are highly relevant
to the resolution of this appeal.
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II. BACKGROUND
A. Legal Background
“Article III of the Constitution confines the judicial power of federal courts
to deciding actual ‘Cases’ or ‘Controversies.’” Hollingsworth v. Perry, 570 U.S.
693, 704 (2013). “One essential aspect of this requirement,” and the only one at
issue in this appeal, “is that any person invoking the power of a federal court
must demonstrate standing to do so.” Id. “[T]he question of standing is whether
the litigant is entitled to have the court decide the merits of the dispute or of
particular issues. This inquiry involves both constitutional limitations on federal-
court jurisdiction and prudential limitations on its exercise.” Warth v. Seldin, 422
U.S. 490, 498 (1975). “In both dimensions it is founded in concern about the
proper—and properly limited—role of the courts in a democratic society.” Id.“In its constitutional dimension, standing imports justiciability: whether the
plaintiff has made out a case or controversy between himself and the defendant
within the meaning of Art. III.” Id. (quotation omitted). “As an aspect of
justiciability, the standing question is whether the plaintiff has alleged such a
personal stake in the outcome of the controversy as to warrant his invocation of
federal-court jurisdiction and to justify exercise of the court’s remedial powers on
his behalf.” Id. at 498–99 (quotation omitted). “To establish Article III standing,
a plaintiff must show (1) an injury in fact, (2) a sufficient causal connection
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between the injury and the conduct complained of, and (3) a likelihood that the
injury will be redressed by a favorable decision.” Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 157–58 (2014) (quotations and alteration omitted). As
was true before the district court, Denver does not dispute on appeal that
Calderón has Article III standing to bring her constitutional claims. Nor can this
court conceive of any reason to conclude Calderón lacks constitutional standing.
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006) (noting that a federal
court has “an obligation” in every case to “assure [itself] of litigants’ standing
under Article III” (quotation omitted)).
Prudential standing, in contrast, represents “judicially self-imposed limits
on the exercise of federal jurisdiction.” Hill v. Warsewa, 947 F.3d 1305, 1309
(10th Cir. 2020) (quotation omitted). “Under the prudential standing doctrine, a
party may not rest its claims on the rights of third parties where it cannot assert a
valid right to relief of its own.” Id. at 1309–10 (quotations omitted). 2
2
As noted at some length in Hill v. Warsewa, the doctrine of prudential
standing has recently undergone significant evolution. 947 F.3d 1305, 1308–09
(10th Cir. 2020). “Traditionally, the doctrine encompassed three broad principles:
‘[1] the general prohibition on a litigant’s raising another person’s legal rights,
[2] the rule barring adjudication of generalized grievances more appropriately
addressed in the representative branches, and [3] the requirement that a plaintiff’s
complaint fall within the zone of interests protected by the law invoked.’” Id. at
1309 (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S.
118, 126 (2014)). In Lexmark, however, the “Court concluded that the zone of
interests test is not prudential in origin and is indeed not a standing inquiry at all,
(continued...)
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“Accordingly, a party may suffer a cognizable injury but still not possess a right
to relief. Injury to a party’s interest for the purposes of constitutional standing
does not automatically confer prudential standing.” Id. at 1310 (quotations,
citation, and alteration omitted). The third-party standing rule is based on the
assumption that “the party with the right has the appropriate incentive to
challenge (or not challenge) governmental action and to do so with the necessary
zeal and appropriate presentation.” Kowalski v. Tesmer, 543 U.S. 125, 129
(2004). Additionally, “[i]t represents a healthy concern that if the claim is
brought by someone other than one at whom the constitutional protection is
aimed, the courts might be called upon to decide abstract questions of wide public
significance even though other governmental institutions may be more competent
to address the questions and even though judicial intervention may be unnecessary
to protect individual rights.” Id. (citations and quotations omitted).
2
(...continued)
while the generalized grievance test is properly part of the Article III
constitutional standing inquiry.” Hill, 947 F.3d at 1309. Lexmark, however, left
the third-party standing rule’s “proper place in the standing firmament [to] await
another day.” 572 U.S. at 127 n.3. Hill held that this court will “continue to
analyze third party standing as an element of prudential standing and apply our
pre-Lexmark decisions bearing on that analysis.” 947 F.3d at 1309. Notably, the
third-party standing rule is the only aspect of prudential standing at issue in this
case.
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B. Factual Background 3
In 2007, Denver created the TJCP to provide services for adult inmates
transitioning from jail to the community. Calderón, a “Latina/African-American
female,” was a member of the committee that created the TJCP. Calderón was
also co-chair of the Colorado Latino Forum (the “Forum”), “an organization
dedicated to increasing the political, social, educational[,] and economic strength
of Latinas and Latinos.” Appellant’s App. at 11. Denver designated CRP with
community collaborators as the organization that would carry out the TJCP.
Denver contracted with CRP through CRP’s financial agent. From its inception in
2007 until December 2017, CRP administered the TJCP under a series of one-year
contracts that were renewed automatically, with the exception of 2011 when
Denver issued a Request for Proposal (“Request”) for the TJCP. During this
entire time-frame, Calderón led the TJCP as CRP’s Executive Director.
In the summer of 2017, Calderón spoke publicly and to Denver Mayor
Michael Hancock, privately, about possible race discrimination in the sheriff’s
department and the management of the city jail. In particular, on June 15, 2017,
Calderón spoke about these issues as part of a press release from the Colorado
3
This factual recitation is drawn from Calderón’s complaint, as well as the
TJCP contracts attached to Denver’s motion to dismiss. See infra n.8.
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Latino Forum and other groups. 4 Calderón also raised many of these issues in a
private meeting with Hancock on August 14, 2017. In June 2017, officials in
various city offices, including the Mayor’s office, City Attorney’s office,
Department of Safety, and Sheriff’s Department, discussed “terminating Calderón
and CRP’s contract” to administer the TJCP. Jess Vigil, who was at all relevant
times Denver’s Deputy Manager of Public Safety, spoke to other officials
numerous times about “terminating the CRP contract because of Calderón’s
activism and criticism of [Denver] officials.” Appellant’s App. at 15. Vigil
stated “that Calderón deserved to lose the contract and . . . had brought the
termination of the CRP contract on herself.” Id. During a meeting on August 14,
4
According to Calderón’s complaint, her speech on June 15, 2007, related
to the following issues:
(i) discrimination against African Americans in the Sheriff
Department, including the Sheriff’s reorganization of the Sheriff
Department to exclude African Americans and Latinos from
executive leadership; (ii) conditions at and management of the City’s
jail by the Sheriff Department, including but not limited to Sheriff
Patrick Firman’s ongoing leadership failures to adequately address
jail overcrowding and rising assaults; and (iii) necessary changes in
the management of jails, including diversifying [the Department’s]
executive leadership team to culturally reflect the staff and inmate
population, increasing community engagement, addressing deputy
fatigue to reduce excessive force incidents, reducing the jail
population and rising assaults, creating more humane conditions for
inmates by expanding mental health, medical, educational and reentry
services, and enacting proportional discipline practices.
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2017, Hancock stated “he was ‘personally offended’ and ‘stung’ by [Calderón’s]
criticisms of his and [another executive staffer’s] treatment of African American
staff.” Id.
In July 2017, after six years of automatically renewing CRP’s contract to
administer the TJCP, Denver issued a formal Request for Proposal (the
“Request”) for the TJCP. According to Calderón, it did so despite the fact there
“were no issues with Calderón[’s] and CRP’s performance under” the contract to
administer the TJCP. Id. at 14. She alleges Denver officials “set up a sham and
pre-determined process for issuing and processing” the Request for the TJCP. Id.
at 16. For example, Calderón was not included on the distribution list for the
Request and employees of the Sheriff’s Department actively recruited
organizations other than CRP to participate in the bidding process. Furthermore,
the initial committee considering applications submitted pursuant to the Request
included board members of organizations applying for the contract to administer
the TJCP. Calderón alleges the President of the Denver City Council and an
employee of Denver Human Services told relevant Denver decision makers 5 “that
5
The process for reviewing applications for a Denver contract such as the
contract to administer the TJCP involves four steps. First, the Crime Prevention
and Control Commission reviews the applications and makes recommendations to
the Executive Director of Denver Human Services. Second, the Executive
Director reviews and rubberstamps the recommendation to the Mayor. Third, the
Mayor selects the contractor and sends a proposed ordinance to the City Council.
(continued...)
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CRP had failed in its performance of the [TJCP] contract, a fact that was not true
in any respect.” Id. at 17–18. After learning about the Request from a Denver
employee, Calderón applied on behalf of CRP and its fiscal agent, for renewal of
the contract to administer the TJCP. Calderón was the only woman to respond to
the Request.
On October 18, 2017, the review committee recommended that a coalition
of organizations be awarded the contract to administer the TJCP. Calderón
warned Denver officials that the recommended organizations had a pattern and
practice of being hostile toward women. For that reason, Calderón told the
officials that requiring CRP’s all-female staff to collaborate with those
organizations during the transition would put CRP staff members at risk of harm.
According to Calderón, Denver officials sought to discredit her by spreading the
false and malicious rumor that she had spoken out about the demotion of an
African American Sheriff Division Chief because she was having an affair with
him. Denver City Council members Debbie Ortega and Rafael Espinoza
expressed concerns about the Request process. Ortega questioned whether the
contract to administer the TJCP needed to be put out for bid and noted the
5
(...continued)
Finally, the Denver City Council votes to accept the proposed ordinance, with
little review or question. The mayor is the final decision maker in the contracting
process.
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contract was being treated differently from another contract that had been in place
since 2003. Espinoza stated that Denver’s “advancement of the contract did not
‘pass the smell test’” and indicated that putting the contract up for bid would be a
good way to retaliate against Calderón. Id. at 18–19. Nevertheless, following
approval of the committee’s recommendation by Denver’s Human Services
Director and Hancock, the contract to administer the TJCP was formally awarded
to the recommended coalition of organizations on March 19, 2018.
C. Procedural Background
Shortly after Denver declined to renew CRP’s contract to administer the
TJCP, Calderón initiated this 42 U.S.C. § 1983 civil rights suit. She alleged
Denver’s actions surrounding the process of awarding the 2018 contract to
administer the TJCP deprived her of her First Amendment right to be free from
speech-based retaliation and her Fourteenth Amendment equal protection and due
process rights to be free from sex-based discrimination. Calderón asserted she
“suffered economic losses from [Denver’s] refusal to renew the CRP’s contract to
provide transition from jail to community services, including but not limited to
lost wages and benefits and lost reputation, as well as emotional and physical
suffering.” Appellant’s App. at 21.
Denver moved to dismiss Calderón’s complaint, arguing, inter alia, that
Calderón lacked prudential standing to raise her First and Fourteenth Amendment
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claims because those claims were derivative of claims belonging to CNDC. In
support of this argument, Denver attached copies of the various contracts and
addenda thereto entered into by Denver and CNDC.
In her opposition to Denver’s motion to dismiss, Calderón began by noting
Denver’s prudential-standing arguments revolved around “an apparent effort to
explain the contracting entities involved here.” In that regard, Calderón argued
that her complaint, the relevant contract, and a declaration attached to her
opposition demonstrated CRP was not an entity or employer of any kind, but was
instead a program controlled entirely by Denver. Furthermore, Calderón’s
declaration made clear that CRP was “eliminat[ed]” when Denver terminated its
relationship with her. As to CNDC, Calderón asserted as follows:
Because [Denver] could not directly run a non-profit
community-based group, [Denver] designated a fiscal entity for the
CRP. Over the years, [Denver] designated three different fiscal
agents for CRP, the last being CNDC. CRP had no authority to
determine the fiscal agent. [The contracts attached to Denver’s
motion to dismiss] specif[y] that CNDC is responsible for Human
Resources services for the CRP, including benefit enrollment, payroll
functions, insurance and billing of payroll costs.
Aplt. App. at 117–18 (record citations omitted). Although Calderón’s response
sought to correct the record as to the status of the entities at issue, it never
directly asserted that the true status of the entities rendered her claims non-
derivative. Although the import of Calderón’s factual assertions (i.e., CRP was
nothing more than a Denver program with no independent status and CNDC was a
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mere fiscal agent of Denver with no ownership interest in the contract to
administer the TJCP) was that she was the direct and appropriate party to bring
her constitutional claims, she never directly argued that point in opposing
Denver’s motion to dismiss. Instead, she argued she had a direct interest as a
Denver employee. Calderón’s complaint, however, is better directed, referring to
herself as the contractor, see Aplt. App. at 19 (complaint at paras. 37, 38), and
asserts the contract belonged to her (or to her and CRP), see id. at 15 (complaint
paras. 27, 28, 29).
In its reply in support of its motion to dismiss, Denver did not deny as
factually inaccurate the information in Calderón’s response and declaration or
argue that information was irrelevant because it was not contained in the
complaint. Instead, Denver simply asserted the contracts between Denver and
CNDC demonstrated Calderón’s constitutional claims were derivative of claims
belonging to CNDC. Notably, in so arguing, Denver did not assert CNDC was
something more than a fiscal agent and did not identify any authority, from
Colorado or otherwise, standing for the proposition that a fiscal agent has any
ownership interest in an underlying contract it administers. See generally Fiscal
Agent Black’s Law Dictionary (9th ed. 2009) (providing that a “fiscal agent” is a
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“bank or other financial institution that collects and disburses money and services
as a depository of private and public funds on another’s behalf”). 6
In a lengthy order, the district court granted Denver’s motion to dismiss.
The court concluded that although the entity status of CRP and CNDC was
unclear, that fact was immaterial because “Calderón did not enter into a contract
with [Denver] on her own behalf.” The district court then undertook an extensive
analysis of the question of prudential standing. It began by noting the parties had
relied on cases applying the shareholder standing rule and that “neither had
addresse[d] whether it is appropriate to apply the rule in cases, such as this one,
where the plaintiff is an employee rather than a shareholder of the corporation.”
The district court then proceeded to resolve that issue by relying exclusively on
precedent originating outside the Tenth Circuit. The court further noted that there
was no uniform rule on how the doctrine applied to individuals asserting a
violation of their individual constitutional rights. Nevertheless, the district court
resolved each of these open questions in favor of Denver and dismissed
Calderón’s complaint for lack of prudential standing.
6
Neither party has provided this court with any relevant Colorado authority,
and we have not discovered any, defining the term fiscal agent, let alone in a way
that would create a questions as to whether CNDC has any ownership interest in
the TJCP contracts.
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III. ANALYSIS
A. Standard of Review
This court reviews questions of standing de novo. S. Utah Wilderness
Alliance v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013). In undertaking the
review, this court “must accept as true all material allegations of the complaint,
and must construe the complaint in favor of the complaining party.” Warth, 422
U.S. at 501. It is the plaintiff’s responsibility to “allege facts demonstrating that
he is a proper party to invoke judicial resolution of the dispute and the exercise of
the court’s remedial powers” under both Article III and prudential standing rules.
Id. at 518. That is, to survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to plausibly state a claim that falls
within the parameters of the federal courts’ prudential standing limitations. Cf.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
B. Discussion
In her opening brief on appeal, Calderón begins by asserting “[b]ecause this
case revolves around the interests asserted—and specifically whether the interests
asserted in this lawsuit are derivative of a third party entity—it is important to
clarify the entity involved here.” Appellant’s Opening Br. at 14–15. Calderón
then emphasizes that neither CRP nor CNDC can be viewed as having a primary
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interest in the contract. She so asserts as to CRP because it was merely a Denver
program that ceased to exist when Calderón’s contract to administer the TJCP was
not renewed and as to CNDC because it was nothing more than a fiscal agent with
no ownership interest in the contract to administer the TJCP. 7 In
7
In support of this assertion as to CNDC, Calderón directs this court to
CNDC’s website. CNDC’s website describes its essential nature as follows:
Welcome to the Colorado Nonprofit Development Center (CNDC).
Our mission is to enable all Colorado communities to thrive by
maximizing the impact of nonprofits through our fiscal sponsorship.
Understanding Fiscal Sponsorship
Fiscal Sponsorship is a formal arrangement that allows charitable
organizations to operate under the umbrella of CNDC’s legal and tax
status without having to form their own 501(c)(3).
With CNDC, sponsored charitable organizations (which we call
Projects) can focus on implementing mission-based programs and
services while we take care of the management functions of finance,
human resources, legal compliance, and risk management.
This unique partnership allows Projects to launch their programming
quickly, leveraging CNDC’s nonprofit management expertise, robust
back-office infrastructure and technical assistance to equip them for
success, and strengthen their ability to impact the communities they
serve.
https://cndc.org/ (last visited Feb. 1, 2021). Furthermore, in the “What We Do”
section of CNDC’s website, the entity is described as follows:
CNDC provides fiscal sponsorship to select charitable organizations
in Colorado.
(continued...)
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response to these arguments, Denver notes that none of the information as to
CRP’s entity/non-entity status is set out in Calderón’s complaint and that none of
her arguments before the district court centered on that status. See Appellee’s
Response Br. at 16. In reply, Calderón recognizes she “did not specifically raise
7
(...continued)
How Fiscal Sponsorship Works
Fiscal Sponsorship is a formal arrangement that allows charitable
organizations to operate under the umbrella of CNDC’s legal and tax
status without having to form their own 501(c)(3). Through a
rigorous vetting process, CNDC identifies charitable organizations
for fiscal sponsorship that are well positioned to benefit their
communities. These organizations receive our fiscal sponsorship and
become known as a ‘Project’ under the umbrella of CNDC’s
501(c)(3). We take care of the management functions of finance,
human resources, legal compliance, and risk management, freeing
them to focus on their missions. They split the fee for these services
with other Projects, which lowers the cost substantially.
Why Fiscal Sponsorship
CNDC helps Projects make the best use of precious resources. Our
fiscal sponsorship increases their capacity to do more, faster – all
while demonstrating fiscal responsibility and accountability to their
stakeholders. With our expert counsel, sophisticated back office
infrastructure and organizational guidance, Projects are better
equipped to grow their programming and expand their reach in the
community. . . .
https://cndc.org/what-we-do/ (last visited Feb. 1, 2021). Although this court need
not consider this extra-record material in resolving this appeal, this information
certainly supports Calderón’s assertion that CNDC, as a fee-paid fiscal agent,
does not hold any ownership interest in the contract to administer the TJCP.
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the legal issue of the status of the entities at issue here [i.e., CRP and CNDC)] in
the [d]istrict [c]ourt.” Appellant’s Reply Br. at 16. Nevertheless, she notes as
follows:
In its [r]esponse [b]rief, however, [Denver] consistently refers
to CRP as having rights and injuries. Although these statements
probably do not represent material errors, [Calderón] is allowed to
correct those factual assertion in this [r]eply.
As pointed out above in [Calderón’s] [r]esponse to [Denver’s]
[s]tatement of the [c]ase, as well as in [Calderón’s] [c]omplaint and
response to [Denver’s] motion to dismiss below, “CRP” stands for
the Community Reentry Project. It was not an independent entity,
but rather, a [Denver] program. That program was administered by a
fiscal agent because [Denver] could not contract with itself. The
Program was terminated in 2017.
Id. at 17–18.
We conclude this is one of those rare cases where it is appropriate to
resolve this appeal on the basis of a ground raised only tangentially by the
appellant before the district court. See generally United States v. Jarvis, 499 F.3d
1196, 1201–02 (10th Cir. 2007) (explaining when it is appropriate to so act).
Furthermore, this court concludes that failure to address this question would
amount to a manifest injustice. See generally Richison v. Ernest Group, Inc., 634
F.3d 1123, 1128–29 & n.3 (recognizing this court’s discretion to address any new
issue not waived before the district court, but indicating that doing so is only
appropriate if, inter alia, the failure to address the new issue will result in a
manifest injustice). In particular, as set out above, it is a question of law whether
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Calderón’s complaint states a plausible claim that she was directly injured by
Denver’s actions as the contractor administering the TJCP who was denied
renewal of the contract based on her speech and sex. 8 Furthermore, as
demonstrated by the district court’s lengthy analysis of the issue, resolving this
appeal by applying the doctrine of prudential standing to the abstract and
questionable assumptions set out in Denver’s motion to dismiss (i.e., Calderón is
a mere employee of some undefined type of government contractor), is fraught
with difficulty and uncertainty. As noted by the district court, there is no binding
Tenth Circuit precedent to aid the resolution of unanswered questions at several
steps of the analysis. In addition, as set out above in Section II.A., the doctrine of
prudential standing, although not constitutionally mandated, implicates important
institutional interests of the judiciary. It behooves this court to avoid answering
such questions unless absolutely necessary. Cf. Spector Motor Service, Inc. v.
McLaughlin, 323 U.S. 101, 105 (1944) (“If there is one doctrine more deeply
rooted than any other in the process of constitutional adjudication, it is that we
8
In construing Calderón’s complaint, the district court concluded it was
appropriate to consider the TJCP contracts attached to Denver’s motion to dismiss
because they were mentioned in the complaint, were central to Calderón’s claims,
and not asserted to be inauthentic. See Toone v. Wells Fargo Bank, N.A., 716
F.3d 516, 521 (10th Cir. 2013). No party disputes the appropriateness of such an
approach. Thus, in considering whether Calderón’s complaint states a plausible
claim that she is the direct beneficiary of the non-renewed contract to administer
the TJCP, this court likewise considers the contracts.
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ought not to pass on questions of constitutionality . . . unless such [questions are]
unavoidable.”). This is especially so when the record reveals strong reason to
believe the question this court is asked to answer is entirely hypothetical and
divorced from the true state of facts before the court. See United Pub. Workers of
Am. v. Mitchell, 330 U.S. 75, 90 n.22 (1947). (“It has long been this Court’s
considered practice not to decide abstract, hypothetical or contingent questions, or
to decide any constitutional question in advance of the necessity for its decision,
or to formulate a rule of constitutional law broader than is required by the precise
facts to which it is to be applied, or to decide any constitutional question except
with reference to the particular facts to which it is to be applied.” (alterations and
quotations omitted)).
Having decided that it is appropriate to resolve this appeal on the basis of
whether Calderón’s claim plausibly alleges a direct impact flowing from Denver’s
allegedly unconstitutional actions in depriving her of the contract to administer
the TJCP, we turn to that question. Calderón’s complaint plausibly alleges her
injuries are not derivative of claims belonging to CNDC. The complaint alleges
that CRP entered into a contract with Denver through CRP’s fiscal and/or
financial agent, CNDC. The contracts between Denver and CNDC do not indicate
CNDC is anything other than what is described in Calderón’s complaint: a fiscal
agent that distributes money from Denver to CRP and, in exchange for a fee,
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provides human-resource services to CRP. As to CRP, it is plausible to read
Calderón’s complaint as alleging that CRP is nothing more than a Denver project,
not an independent entity or business, and that she, as CRP’s executive director,
is charged with implementing and providing the services of the TJCP. In that
regard, as noted above, Calderón’s complaint refers to herself and CRP
interchangeably as the party that contracted with the City to administer the TJCP.
Indeed, Calderón’s complaint specifically alleges that as a result of her speaking
out as a woman and Latinx advocate, Denver officials set about to deprive her of
her contract.
Because Calderón’s complaint alleges a direct relationship between her
damages flowing from the loss of the contract to administer the TJCP, the district
court erred in dismissing the complaint on the basis of a lack of prudential
standing. We note, however, that the district court can hardly be blamed for
resolving the case as it did given how the parties litigated the case below.
Nevertheless, for those reasons set out above, it is both unnecessary and unwise to
resolve this appeal on the hypothetical and factually irrelevant question whether
an employee of a corporation or business can bring a claim against a government
actor for otherwise indirect violations of the employee’s constitutional rights. Of
course, should that question become relevant on a more complete record produced
at the summary judgment stage, something that seems unlikely given all the
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additional information about CRP and CNDC disclosed on appeal, the district
court will be well prepared to provide an answer.
IV. CONCLUSION
For those reasons set out above, the order of the United States District
Court for the District of Colorado dismissing Calderón’s complaint for lack of
prudential standing is hereby REVERSED. The matter is REMANDED to the
district court for further proceedings consistent with this opinion.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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