Brightbill v. United States , 3 F. App'x 793 ( 2001 )


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  •                                                             F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JAN 30 2001
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    WILLIAM J. BRIGHTBILL;
    GURVEST (JOE) CASTILLE;
    ERNEST E. (BOB) JOSLIN; PAULA
    D. PEEVY; JACQUELINE L.
    TENORIO; LEE E. TRASTER;
    RILEY J. WEBB; BLANCA
    BRIGHTBILL; CLAUDIA E. HALL;
    KYONG O. JOSLIN; KENNETH D.
    MARTINEZ; JOHNNY PEEVY;
    LUCILLE THERESA TRASTER;
    CORDELIA WEBB,
    Plaintiffs - Appellants,
    v.
    No. 99-1554
    UNITED STATES OF AMERICA;
    (D.C. No. 98-D-2757)
    UNITED STATES POSTAL
    (Colorado)
    SERVICE, agency of the United
    States of America (USPS); UNITED
    STATES POSTAL INSPECTION
    SERVICE, agency of the United
    States of America (USPIS);
    WILLIAM HENDERSON, Postmaster
    General for
    the USPS; MARVIN RUNYON,
    former Postmaster General, USPS;
    KENNETH HUNTER, Chief Postal
    Inspector, USPS; KARLA
    CORCORAN, Inspector General,
    USPS; MICHAEL HARRISON, Chief
    of Labor Relations, USPS; H. J.
    BAUMAN, Esq., Counsel, Office
    of the Chief Inspector USPIS;
    JEFFREY DUPILKA, Deputy Chief
    Inspector, Western United States,
    USPIS; CRAIG G. WADE, Vice
    President, Area Operations, Western
    Area Office, USPS; WALTER B.
    OLSEN, Manager, Operations
    Support, Western Area Office, USPS;
    RICHARD J. PIVOVAR, Manager,
    In-Plant Support, Western Area
    Office, USPS; DONNA A.
    GALLOWAY, Manager, Human
    Resources, Western Area Office,
    USPS, a/k/a General Mail Facility,
    Denver District, USPS; GEORGE A.
    BOETTGER, District Manager,Denver
    District, USPS; FRANK W. BEEBE,
    former Senior Plant Manager, Denver
    Processing and Distribution Center,
    a/k/a General Mail Facility, Denver
    District, USPS; MELVIN R.
    STENCEL, Manager, Human
    Resources, Denver District, USPS;
    MANUEL COBOS, Inspector-In-
    Charge, Rocky Mountain Division,
    USPIS; JOHN G. FREEMAN, former
    Inspector-In-Charge, Rocky Mountain
    Division, USPIS; EDWARD B.
    CORNELL, Postal Inspector, Rocky
    Mountain Division, USPIS, and
    Project Sponsor, (Denver, CO P&DC
    Security Upgrade Project); STEVEN
    J. JUHL, Manager, Finance, Western
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    Area Office, USPS; KEITH E.
    LASHIER, Manager, Facilities
    Service
    Office (FSO), Western Area Region,
    USPS; CRAIG BALLARD, Project
    Manager (Denver, CO P&DC Security
    Upgrade Project), Denver Facilities
    Service Office, Western Area, United
    States Postal Service, Denver, CO.; all
    in their individual capacities and in
    their official capacities as employees
    or official of the United States and
    specifically as an employees or
    officials of the United States Postal
    Service or in the United States Postal
    Inspection Service; and any other
    unknown and unnamed individuals
    who may be liable on the claims
    herein,
    Defendants - Appellees.
    ORDER AND JUDGMENT               *
    Before BRISCOE , Circuit Judge, McWILLIAMS , Circuit Judge, and
    JENKINS , ** District Judge.
    *
    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    **
    Honorable Bruce S. Jenkins, Senior District Judge, United States District Court
    for the District of Utah, sitting by designation.
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    On December 24, 1997, at about 7:00 a.m., David Jackson, a former
    employee of the United States Postal Service (“USPS”) who was terminated in
    May, 1996, for threatening behavior, entered a back loading dock of the General
    Mail Facility, Denver, Colorado, a processing and distribution center for the
    USPS, looking for and apparently intending to kill, at gun point, a former
    supervisor. Not finding the former supervisor, Jackson, who was heavily armed,
    proceeded to take seven postal employees hostage, and held them hostage for
    about 10 hours, before he released them and surrendered to the police.     1
    Following this incident, the seven postal employees who were held hostage
    received compensation benefits under the Federal Employees Compensation Act
    (“FECA”). 
    5 U.S.C. § 8101
    ,      et seq.
    On December 21, 1998, the seven hostages, and their respective spouses,
    or significant others, (“the plaintiffs”) filed suit in the United States District
    Court for the District of Colorado. A first amended 36-page complaint setting
    forth in great detail the background facts was later filed on April 19, 1999. In
    the amended complaint the 14 plaintiffs set forth 16 causes of action against 23
    defendants, including a Title VII claim, based on 42 U.S.C. § 2000e, and a
    Bivens claim, based on Bivens v. Six Unknown Named Agents,          
    403 U.S. 388
    1
    We understand that Jackson was charged and found guilty by a jury of several
    federal criminal charges and received a sentence of 37 years imprisonment.
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    (1971). Those are the only claims that we are concerned with in this appeal. A
    motion to dismiss under Fed. R. Civ. P. 12(b)(1) and (6) was filed by the
    individually named employees of USPS on June 21, 1999, and a separate motion
    to dismiss was also filed on that same date by the federal entities named as
    defendants. On October 6, 1999, the district court held a hearing on the pending
    motions to dismiss and on November 22, 1999, entered a memorandum opinion
    and order wherein it granted the defendants’ motions to dismiss and entered
    judgment in favor of all defendants on November 23, 1999.
    In granting the federal entities’ motion to dismiss, the district court stated
    that it was undisputed that the seven hostage plaintiffs received full benefits
    under FECA and that Section 8116(c) thereof provided the receipt of such
    benefits was the “exclusive remedy” that plaintiffs had against the United States
    and its agencies, citing   Swafford v. United States,   
    998 F.2d 837
     (10th Cir. 1993).
    The Bivens claim was directed against the individually named defendants,
    and in granting their motion to dismiss the district court spoke as follows:
    I construe the Amended Complaint in a light most
    favorable to plaintiffs, which I must do in deciding a
    motion to dismiss. It appears that the plaintiffs are
    claiming a violation of substantive due process.
    However, I find that the law was not clearly established
    in December 1997 that, under the circumstances
    presented here, an employer must take affirmative steps
    over an indefinite period of time (here, one and one-half
    years), to prevent a former employee from breaking in at
    some unknown date and taking current employees
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    hostage. This is true even if the employer possesses
    information that the former employee had, at some
    earlier date, made threats against current employees, and
    that violence had occurred at the employer’s various
    facilities around the country.
    In dismissing the plaintiffs’   Bivens claim, the district court cited,   inter
    alia, Lawnmaster v. Ward,     
    125 F.3d 1341
     (10th Cir. 1997) and       Uhlrig v. Harden,
    
    64 F.3d 567
     (10th Cir. 1995).
    On appeal, the plaintiffs contend a Title VII claim is not barred by FECA,
    that under the law as it existed on December 24, 1997, the individual defendants
    did violate clearly established constitutional rights of the plaintiffs and that the
    allegations concerning such in the amended complaint were sufficient to defeat a
    motion to dismiss. The federal entities argue, on appeal, that the plaintiffs, in
    their response to the defendants’ motion to dismiss, “voluntarily dismissed” their
    Title VII claim and that, accordingly, when the district court granted the motion
    to dismiss there was no Title VII claim before the court. As to plaintiffs’       Bivens
    claim, the individual defendants argue here that the complaint itself indicates that
    they violated no clearly established constitutional rights, as such existed on
    December 24, 1997, of any of the plaintiffs.
    TITLE VII
    On appeal, counsel argues that plaintiffs’ Title VII claim against the entity
    defendants is not subject to the “exclusive remedy” rule set forth in 5 U.S.C. §
    -6-
    8116(c), citing Miller v. Bolger, 
    802 F.2d 660
     (3rd Cir. 1986). The entity
    defendants, however, point out that counsel for plaintiffs in his response to their
    motion to dismiss “voluntarily dismissed” plaintiffs’ Title VII claim, and that,
    accordingly, the Title VII claim had been abandoned at the time the district court
    granted their motion to dismiss. We agree with the entity defendants. In
    O’Connor v. City and County of Denver,         
    894 F.2d 1210
    , 1214 (10th Cir. 1990),
    we stated that “we do not consider on appeal issues not raised in the district court
    . . . and similarly we will not consider claims abandoned in the district court.” In
    its dismissal order the district court made no mention of a Title VII claim, no
    doubt because plaintiffs had prior thereto voluntarily dismissed their Title VII
    claim. So, the district court did not dismiss, as such, plaintiffs’ Title VII claim;
    rather the plaintiffs abandoned that claim in the district court, and we decline any
    suggestion that it be resurrected on appeal.
    BIVENS
    As indicated, the plaintiffs alleged a     Bivens claim against the individual
    defendants, and the defendants, in their motion to dismiss, raised the defense of
    qualified immunity. In   Breidenbach v. Bolish,     
    126 F.3d 1288
    , 1291 (10th Cir.
    1997), we stated that once a defendant raises the defense of qualified immunity, a
    plaintiff assumes the burden of showing that the defendant violated clearly
    established law, statutory or constitutional, of which a reasonable person would
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    have known, and must allege facts to show that the defendant’s conduct violated
    that right.
    In granting defendants’ motion to dismiss plaintiffs’      Bivens claim, the
    district court concluded that the plaintiffs had not alleged sufficient facts in their
    amended complaint to indicate that the defendants, as reasonable persons, should
    have known that they were somehow violating plaintiffs’ substantive due process
    rights by not providing greater security at the USPS which presumedly would
    have prevented Jackson from taking them hostage. In this regard it would appear
    that at the time of the hostage taking, there was a postal police officer on duty,
    but, as indicated, Jackson entered the premises through an unsecured rear loading
    dock. The district court noted that the hostage taking occurred over a year and
    one-half after Jackson had been terminated. In this connection, we further note
    that there was apparently no “incident” involving Jackson trying to enter the
    USPS or harassing former fellow employees during the intervening year and a
    half. In any event, the district court held that the plaintiffs had not alleged
    sufficient facts in their amended complaint to show a violation of clearly
    established constitutional rights by the individual defendants, citing     Collins v.
    City of Harker Heights, Tex.,    
    503 U.S. 115
     (1992); Uhlrig v. Harder, 
    64 F.3d 567
     (10th Cir. 1995). In addition to the reasons given by the district court for
    granting defendants’ motion to dismiss, we would also observe that there was no
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    “custodial relationship” between the seven hostages and any defendant, that
    Jackson was a so-called “third party,” i.e., not an employee of the USPS, that the
    defendants did not “create or augment” any danger, and, under the circumstances
    described in the complaint, our conscience is not “shocked” by the defendants’
    alleged actions or inaction, nor are we convinced that the defendants otherwise
    acted “recklessly.” In short, we are not inclined to disturb the district court’s
    application of the law to the facts as alleged in plaintiffs’ amended complaint. In
    this general connection, see also   DeAnzona v. City & County of Denver,   
    222 F.3d 1229
     (10th Cir. 2000); Armijo v. Wagon Mound Pub. Sch.,       
    159 F.3d 1253
     (10th
    Cir. 1998); Graham v. Independent Sch. Dist. No. I-89,    
    22 F.3d 991
     (10th Cir.
    1994).
    Judgment affirmed.
    ENTERED FOR THE COURT
    Robert H. McWilliams
    Senior Circuit Judge
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