Timothy M. Tymkovich
How Judge Tymkovich rules, drawn from 64 signed orders. Every observation links to the order it came from.
How Judge Tymkovich decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
Rigorous 'clearly established law' analysis in qualified-immunity appeals: he looks for on-point Supreme Court or circuit precedent (or a clear weight of out-of-circuit authority), not just a general constitutional principle, before letting a damages suit against an official proceed.
“for a right to be clearly established we look for ‘Supreme Court or Tenth Circuit precedent on point,’ or clearly established weight of authority from other courts that ‘found the law to be as the plaintiff maintains.’”
Insists on a genuine 'affirmative link' before holding a supervisor liable for a subordinate's constitutional violation: authority over the officers who acted is not enough; the supervisor's own deliberate involvement or acquiescence must be shown.
“Supervisors are only liable under § 1983 for their own culpable involvement in the violation of a person's constitutional rights. ... the plaintiff must establish 'a deliberate, intentional act by the supervisor to violate constitutional rights.'”
In public-lands review, Tymkovich required the agency to connect its decision to every governing statutory factor. Addressing related environmental issues did not cure the omission of a distinct balance requirement imposed by the controlling statute.
“Ignoring thriving natural ecological balance, a requirement of the Wild Horse Act, makes BLM’s decision arbitrary and capricious under the APA.”
In a challenge to legislative press credentials, Tymkovich treated the sequence of criticism, credential revocation, and a new categorical exclusion as sufficient at the pleading stage to support viewpoint discrimination. A claimant should connect the policy change to concrete treatment and timing, not rely on the policy's breadth alone.
“Considering these facts as true and in a light favorable to Schott, it is plausible the Legislature revised its policy to target him.”
In a consumer-credit case, Tymkovich distinguished a bare assertion of identity theft from objective evidence separating the consumer from the debt. A dispute is stronger when it supplies records that can be checked without asking the furnisher to decide witness credibility.
“If a consumer’s dispute of identity theft contains objective evidence showing the consumer was not tied to the debt it might meet the inaccuracy standard.”
Procedural preferences
Treats a prior panel's mandate on remand as binding, not advisory: a district court cannot revisit a legal question the circuit has already decided in the same case, even if the district judge is unpersuaded.
“The district court disregarded this court's clear mandate from Dutch I that the ACCA governs Dutch's sentencing.”
Enforces administrative-exhaustion and jurisdictional limits strictly in immigration petitions for review: an argument never raised to the Board of Immigration Appeals is forfeited and cannot be resurrected on judicial review, cutting off jurisdiction rather than reaching the merits.
“Neglecting to take an appeal to the BIA constitutes a failure to exhaust administrative remedies as to any issue that could have been raised, negating the jurisdiction necessary for subsequent judicial review.”
Cautions
Reads substantive due process narrowly outside the classic police/prison/school-discipline contexts: even plainly troubling, intentional physical force by a government employee against a private citizen does not become a constitutional tort unless it reaches the demanding 'conscience-shocking' threshold; ordinary tort law is the presumptive remedy.
“we recognize constitutional torts only ‘in the narrowest of circumstances’ ... The tortious conduct alleged 'must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power.'”
In a constitutional challenge to a firearm waiting period, Tymkovich rejected historical comparisons drawn from groups that did not possess equal legal rights. A history-and-tradition argument should explain why its proposed analogue illuminates the same right for a comparable class of people.
“Originalists—or those analyzing text, history, and tradition—must take care to consider whether the historical practices brought to their attention actually speak to a right’s scope.”
In a false-advertising case, Tymkovich distinguished verifiably false commercial claims from scientific conclusions drawn from accurately described data amid legitimate debate. A complaint should identify the false underlying fact or methodology rather than rest on disagreement with a disclosed scientific inference.
“to the extent a speaker or author draws conclusions from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement, those statements are not grounds for a claim of false advertising under the Lanham Act.”
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“The principal issues presented by the government's appeal are (1) whether plaintiffs have exhausted the FTCA's notice requirements; ... Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proceedings.”
“We agree with the district court that the Forest Service properly implemented this project under a categorical exclusion. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.”
“In light of the undisputed record below, we conclude that Gasko did not violate clearly established law, so summary judgment should have been granted in his favor. Accordingly, we reverse the district court's order.”
“Having jurisdiction to consider the denial of federal qualified immunity under 28 U.S.C. § 1291, we REVERSE the district court's denial of the officers' motion for summary judgment.”
“Applying these standards, we conclude that two of Kay's claims may state a claim for relief. ... Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proceedings.”
“Accordingly, we AFFIRM the district court's grant of summary judgment on Plaintiffs' substantive due process claim.”
“Because we conclude DiMarco does not have a liberty interest in her placement and the conditions of confinement, we reverse.”
“Because Ms. Johnson failed to show that the City's actions infringed on a fundamental right, we affirm the district court's grant of summary judgment on her substantive due process claim. We also affirm summary judgment on her negligence claim.”
“Because these traffic stops outside municipal boundaries did not violate clearly established Fourth Amendment law at the time of the violations, we REVERSE.”
“Taking Fisher's allegations as true, we conclude a reasonable jury could find his injuries sufficient to satisfy our minimal threshold injury requirement. Accordingly, we REVERSE.”
“We conclude that the City's three-step appeals process provided adequate pretermination due process for Riggins to challenge the City officials' decision, and that the decision was not otherwise the result of a biased process. Accordingly, we REVERSE.”
“As we discuss below, we find no error by the district court. We therefore VACATE our previous decision and AFFIRM Bowling's conviction and sentence.”
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