                                                            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




                                  -2-
 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.

                                           -3-
      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

                                            -5-
              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


                                           -7-
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


                                            -8-
“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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