FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 10, 2017

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

PHILIP WHITE,

Plaintiff - Appellant,

v. No. 16-1319

KYLLION CHAFIN, in his

individual and official capacity,

Defendant - Appellee,

and

ROBERT WYCOFF, in his

individual and official capacity,

Defendant.
_________________________________

Appeal from the United States District Court

for the District of Colorado
(D.C. No. 1:13-CV-01761-CMA-MJW)
_________________________________

Andrew McNulty, Killmer, Lane & Newman, LLP, Denver, Colorado

(Darold W. Killmer and Mari Newman, Killmer, Lane & Newman, LLP,
Denver, Colorado, with him on the briefs), for Plaintiff-Appellant.

Geoffrey Klingsporn, Denver City Attorneys Office, Denver, Colorado,

for Defendant-Appellee.
_________________________________

Before KELLY, MURPHY, and BACHARACH, Circuit Judges.

_________________________________

BACHARACH, Circuit Judge.

 _________________________________

Mr. Philip White obtained a judgment for $100,000 in compensatory

damages and moved for an award of prejudgment interest. The district

court denied the motion, viewing the bulk of the award as compensation for

noneconomic damages.

Mr. White argues that we should

overrule earlier opinions and find that prejudgment interest is

always available for compensatory awards under 1983 or

conclude that the district court abused its discretion in

disallowing prejudgment interest.

For the second argument, Mr. White suggests that we could award

prejudgment interest on the entire compensatory award ($100,000) or at

least on the amount of his economic damages.

We reject Mr. Whites arguments. The first argument is invalid

because we cannot overrule published opinions by other Tenth Circuit

panels. Under those opinions, our review is confined to the abuse-of-

discretion standard. In applying that standard, we conclude that the district

court

had the discretion to deny prejudgment interest on the award of

noneconomic compensatory damages and

could reasonably decline to speculate on the amount that the

jury had regarded as economic damages.

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I. Mandatory Award of Prejudgment Interest

Mr. White urges a bright-line rule requiring the addition of

prejudgment interest whenever a claimant prevails under 42 U.S.C. 1983.

Appellants Opening Br. at 7. But this bright-line rule would conflict with

our published opinions. Under those opinions, prejudgment interest is not

recoverable as a matter of right. Zuchel v. City & Cty. of Denver, 997

F.2d 730, 746 (10th Cir. 1993). Those opinions cannot be overruled by a

panel. Thompson v. Weyerhaeuser Co., 582 F.3d 1125, 1130 (10th Cir.

2009). Thus, our panel must apply those opinions and reject Mr. Whites

argument for a bright-line rule requiring prejudgment interest in all 1983

cases.

In his reply brief, Mr. White contends that under 42 U.S.C. 1988,

the federal law on prejudgment interest should incorporate Colorado law,

which mandates prejudgment interest. Mr. White waived this contention by

waiting to present it for the first time in his reply brief. See Wheeler v.

Commr, 521 F.3d 1289, 1291 (10th Cir. 2008) ([I]ssues raised by an

appellant for the first time on appeal in a reply brief are generally deemed

waived, and we will not consider the arguments [the appellant] raised for

the first time in his reply brief.). 1

1
In his opening brief, Mr. White urged incorporation of Colorado law
but addressed 1988 in this context only in a single sentence of a
footnote: This proposition is particularly supported by a reading of
Section 1983s companion statute, Section 1988, which explicitly instructs
3
 The contention is not only waived but also invalid. Notwithstanding

1988, our court has held that awards of prejudgment interest are not

recoverable as a matter of right, as discussed above. See p. 3, above. In

addition, 1988 would require use of state law only if federal law were

considered deficient in cases involving 1983. 42 U.S.C. 1988; see

Robertson v. Wegmann, 436 U.S. 584, 588 (1978). In our view, federal law

is not rendered deficient by the absence of a mandatory right to

prejudgment interest in 1983 cases. See Furtado v. Bishop, 604 F.2d 80,

97 (1st Cir. 1979) (holding that 1983 is not rendered deficient, for

purposes of 1988, by the omission of prejudgment interest).

Because reliance on 1988 is waived and invalid, we see no reason

to question our precedents even if we could. Under those precedents, an

award of prejudgment interest is not recoverable as a matter of right.

II. Denial of Prejudgment Interest to Mr. White as an Abuse of

Discretion

Because prejudgment interest is not recoverable as a matter of right,

we review the denial under the abuse-of-discretion standard. Zuchel v. City

& Cty. of Denver, 997 F.2d 730, 746 (10th Cir. 1993). The district court

abuses its discretion only by acting

courts to look to state law in making determinations. Appellants Opening

Br. at 21 n.5. This perfunctory statement was insufficient to trigger
appellate review. See Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir.
1994) (stating that perfunctory complaints, which fail to frame and
develop an issue, are not sufficient to invoke appellate review).
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 with arbitrariness, capriciousness, or whimsicalness or

with manifestly unreasonable judgment.

Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 763 (10th Cir. 1997). Thus,

Mr. White acknowledges that [u]nder the current standard in this Circuit,

district courts have been given great leeway in their determinations as to

whether prejudgment interest should be awarded when a jury returns a

verdict of compensatory damages in Section 1983 cases. Appellants

Opening Br. at 7. 2

According to Mr. White, the denial of prejudgment interest

constituted an abuse of discretion for four reasons:

1. The district court failed to consider whether an award of

prejudgment interest would be compensatory.

2. The district court erred in deciding that prejudgment interest is

not available for noneconomic damages and should have
granted prejudgment interest on the entire compensatory award
of $100,000.

3. The district court failed to consider pertinent factors relating to

the equity of awarding prejudgment interest.

4. In the alternative, prejudgment interest should have been

awarded on the amount of Mr. Whites economic damages.

We reject these arguments.

2
Mr. White criticizes our precedent creating this leeway. Appellants
Opening Br. at 7-24. But as discussed above, this precedent binds our
panel. See Part I, above.
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 A. Consideration of Whether Prejudgment Interest Would Be
Compensatory for Noneconomic Damages

We have prescribed a two-step test to determine whether to award

prejudgment interest. The first step is to determine whether such an award

would compensate the injured party. Zuchel v. City & Cty. of Denver, 997

F.2d 730, 746 (10th Cir. 1993). If prejudgment interest would be

compensatory, the court must determine whether the equities would

preclude an award. Id.

Mr. White argues that the district court erroneously skipped the first

step, balancing the equities without deciding whether prejudgment interest

would have been compensatory. We disagree.

The district court began by determining that prejudgment interest for

noneconomic damages would not be compensatory. For this determination,

the court reasoned that Mr. White had primarily obtained noneconomic

damages. This determination led the district court to decide that

prejudgment interest was unnecessary to compensate Mr. White. In

reaching this decision, the court acted within its discretion. 3

3
Even though the district court considered whether prejudgment
interest was compensatory, the court could have skipped this step upon
determining that the equities would preclude an award. See Malloy v.
Monahan, 73 F.3d 1012, 1019 (10th Cir. 1996) (holding that the district
court did not err in denying prejudgment interest based on the equities
even though an award of prejudgment interest would have been
compensatory).

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 Mr. White argues that the district court neglected to consider the

importance of just compensation for a delay in paying noneconomic

damages. Appellants Opening Br. at 43. For this argument, Mr. White

relies on Barnard v. Theobald, 721 F.3d 1069 (9th Cir. 2013), which held

that a plaintiff is entitled to compensation for a delay in paying

noneconomic damages. See Barnard, 721 F.3d at 1078. We reject this

argument.

In our view, the district court had the discretion to decline awarding

prejudgment interest for noneconomic damages. Mr. White implicitly

assumes that noneconomic damages are incurred instantly at a discrete

point in time and that any delay in payment is compensable. But the

district court could reasonably reject these assumptions, viewing

noneconomic damages as continuing over an undefined period. Under this

view, the jury could ascertain the amount from a sense of how much the

Mr. White relies on Zuchel v. City & County of Denver, 997 F.2d 730
(10th Cir. 1993), to argue that the district court erred by skipping the first
step. In Zuchel, the district court addressed both steps when denying an
award of prejudgment interest. 997 F.2d at 746. But our opinion did not
suggest that the district court had an obligation to address both steps.
Instead, we stated simply that when an award would serve a
compensatory function, the court must still determine whether the equities
would preclude the award of prejudgment interest. Id. (quoting U.S.
Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1257 (10th Cir. 1988)).

Even if the district court had skipped the first step, the district court
found that the balance of equities weighed against awarding prejudgment
interest here. We could not disturb that ruling based on a decision to skip
the first of the two steps.

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damages are worth at the time of trial. Wilson v. Burlington N. R.R. Co.,

803 F.2d 563, 567 (10th Cir. 1986) (McKay, J., concurring). This approach

represents a reasonable exercise of discretion.

B. Consideration of the Pertinent Equitable Factors

Mr. White argues that the district court abused its discretion by

failing to consider Mr. Whites age, the public interest in fully

compensating Mr. White, and the outrageousness of the defendants

conduct. We have no reason to doubt the district courts consideration of

the defendants culpability and the need for full compensation. Mr. White

obtained $300,000 in punitive damages, and the district court could

reasonably conclude that the egregiousness of the defendants conduct had

not required an award of prejudgment interest. And the court stated why it

regarded prejudgment interest as unnecessary for full compensation.

The district court did not mention Mr. Whites age. But the district

court had little reason to consider Mr. Whites age, for his opening brief

made no mention of his age. In Mr. Whites reply brief, his age is

referenced twice. The first reference appeared in the discussion of

noneconomic damages, a subject that was thoroughly discussed in the

district courts order. See Appellants App., vol. I at 228 (The arbitrary

fiction that Mr. Whites damages were non-economic and are therefore

less compensable than someone who wasnt retired, or eighty years old, or

blind, is unsupported by the law and against the interests of justice.). The

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second reference to age involved the risk that Mr. White might not live

long enough to collect. See id. at 232 (And, Mr. White is about to turn 81

years old; delay presents a very real risk that Mr. White may never see

what the jury has awarded.). Even if the district court had agreed, 4 it

could reasonably have questioned why Mr. Whites potential death would

have tipped the balance on prejudgment interest.

In our view, the district court acted within its discretion in balancing

the equities.

C. Prejudgment Interest on $3,974.25 of Economic Damages

Finally, Mr. White contends that the district court should have

awarded prejudgment interest based on the award of economic damages.

For this contention, Mr. White insists that his evidence showed economic

damages of $3,974.25. But we do not know how the jury weighed that

evidence. Thus, the district court refused to attribute $3,974.25 to

economic damages. This reasoning fell within the district courts

discretion.

In district court, Mr. White argued that the district court should

refuse to speculate on how the jury divided its award between economic

and noneconomic damages: Any determination as to what dollar amount

4
The District of Colorado generally forbids parties from presenting an
argument for the first time in their reply briefs. In re Molycorp, Inc. Sec.
Litig., 157 F. Supp. 3d 987, 1003 n.10 (D. Colo. 2016); Alcohol Monitoring
Sys., Inc. v. Actsoft, Inc., 682 F. Supp. 2d 1237, 1242-43 (D. Colo. 2010).
9
of the compensatory damages award is non-economic . . . is speculative

and this Court should not violate the sanctity of jury verdicts and

speculate on the matter. Appellants App., vol. I at 228 (quoting Hotel

Assocs. of Utah & Colo. v. Holiday Inns, Inc., 152 F.R.D. 206, 214 (D.

Utah 1993)).

Through this argument, Mr. White opposed any effort to speculate on

the jurys calculations of economic and noneconomic damages. Now Mr.

White says the opposite. He arguably waived his current argument by

asserting the opposite in district court. But even in the absence of a

waiver, the district court acted within its discretion by refusing to

speculate on the jurys calculations. After all, no one suggested to the

district court that it could ascertain the amount that the jury had attributed

to economic damages. As a result, we conclude that the district court did

not abuse its discretion when declining to assess prejudgment interest on

the alleged economic damages ($3,974.25).

III. Conclusion

In our circuit, prejudgment interest is not a matter of right; thus, the

district court must exercise its discretion. In this case, the district court

exercised its discretion, concluding that prejudgment interest was

unnecessary to compensate Mr. White. This conclusion entailed a

reasonable exercise of discretion. Thus, we affirm the denial of

prejudgment interest.

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Affirmed.

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