                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                        September 3, 2014

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 ANTHONY ROBBIN,

        Plaintiff - Appellant,

 v.                                                          No. 13-2030
                                                 (D.C. No. 1:11-CV-00879-JAP-RHS)
 CITY OF SANTA FE; RAY RAEL,                                  (D.N.M.)
 individually and in his official capacity;
 GALEN BULLER, individually and in his
 official capacity; ROBERT P. ROMERO,
 individually and in his official capacity;
 CHRISTINE KUEBLI, individually and
 in her official capacity; and NANCY
 JIMENEZ, individually and in her official
 capacity,

        Defendants - Appellees.


                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, EBEL, and PHILLIPS, Circuit Judges.


       This is a 42 U.S.C. § 1983 action, with related state law claims, brought by former

Police Captain Anthony Robbin, who claims that his constitutional procedural due



       *This order and judgment is not binding precedent, except under the doctrines of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.
process rights were violated when he was demoted from the rank of captain at the Santa

Fe, New Mexico Police Department without proper procedural protections. We agree

with the district court’s grant of summary judgment in favor of then-Acting City Manager

Galen Buller. Mr. Robbin did not state a §1983 claim against Mr. Buller because he did

not show that Mr. Buller was personally responsible for Mr. Robbin’s deprivation, and

alternatively, the statute of limitations had run on Mr. Robbin’s claims against Mr.

Buller. We uphold the district court’s grant of summary judgment for then-Interim Police

Chief Ray Rael, on the grounds of qualified immunity, because a reasonable official

could have concluded that Mr. Robbin was an exempt officer without the procedural

protections Mr. Robbin claims he was due, and because Mr. Robbin forfeited his

argument that Defendant Rael acted without the authority under municipal law to demote

exempt employees.1 We thus AFFIRM the district court’s grant of summary judgment to

these two defendants, and given that conclusion, we AFFIRM the district court’s decision

not to retain jurisdiction over Mr. Robbin’s state law claims.

                                            I.

       The facts, when viewed in the light most favorable to the non-moving party, Mr.

Robbin, are as follows. Mr. Robbin joined the City of Santa Fe Police Department

twenty-two years before his contested demotion. In April 2008, Mr. Robbin was

promoted to the rank of captain in the Santa Fe, New Mexico police department. But in

       1
       At Oral Argument, Mr. Robbin disavowed his claims against all other
defendants, so only his claims against Defendants Buller and Rael are considered here.

                                             2
April 2011, Mr. Robbin was demoted from that rank, which he characterizes as being

“effectively fired.” Aplt. Br. at 3.

       The Santa Fe City Code (“City Code”) provides due process protection for all

“classified” employees. In contrast, “exempt” employees lack such procedural

protections. In 2004, former Chief of Police Beverly Lennen suggested that the police

captain rank be changed from a classified rank to an exempt one. She had consulted with

various departments, including the legal department, about the propriety of making the

captain rank exempt, and concluded her proposal did not conflict with relevant city rules

and ordinances. Acting on this recommendation, City Manager Romero issued a

memorandum purporting to change the captain rank from classified status to exempt

status. He did not obtain city council or department director approval for this change.

After City Manager Romero’s memo circulated, as far as Mr. Robbin knew, the police

captains hired or promoted by the Santa Fe Police Department served in exempt captain

positions.

       Notwithstanding this change in the status of the position of police captain, in 2007

Santa Fe posted a listing for a “classified” police captain. Then-lieutenant Robbin applied

for the promotion. The application process required Mr. Robbin to take a test, which

traditionally had been required of only classified—and not exempt—positions. However,

Chief Lennen’s 2004 proposal to change police captain to an exempt status had

recommended requiring the captain applicants to test for the position, and for the

department to choose the captain from those satisfactorily completing the test. No statute,
                                             3
rule, or procedure said that the city could not test for exempt positions. Mr. Robbin

scored highest on the test, and was selected for the promotion.

       In April 2008, Mr. Robbin met with the current police department leadership to

receive his promotion. Then-Chief Eric Johnson told Mr. Robbin that in order to receive

the promotion, he would have to sign a blank human resources form that would serve as

an acknowledgment that the captain position was not classified (the “Human Resources

Form”). Upon Mr. Robbin’s inquiry, he was told that the captain position was meant to

be an exempt position. Mr. Robbin disputed the exempt nature of the captain rank,

contending that the position posting had listed the position as classified and that he had

tested for it as a classified employee would have done. He nevertheless signed the Human

Resources Form acknowledging the exempt character of his captain position.

       Mr. Robbin’s remarks about the classified nature of the captain position led to a

second meeting that day, between Mr. Robbin and Acting City Manager Buller, who

informed Mr. Robbin that the captain position for which he had applied was an exempt

position. Defendant Buller also presented to Mr. Robbin a rank status memorandum

(“Rank Status Memo”), which stated that: 1) “this rank [as Captain] with the Santa Fe

[was] exempt and for an indefinite term”; 2) he held that rank “at the pleasure of the

Chief of Police” and with the City Manager’s approval; 3) the City could demote Mr.

Robbin from the rank of captain “at any time [and] for any reason”; 4) Mr. Robbin did

not have a property right to the captain rank or any accompanying pay raise; 5) Mr.

Robbin was not “entitled to any hearings or proceedings of any kind or nature prior to
                                             4
[his] removal from [the rank of captain] and the appropriate reduction in salary”; 6) if Mr.

Robbin were “removed from this rank, [he] would return to [his] highest classified rank

which is Lieutenant”; and 7) “[o]ral representations and promises about security in this

rank or other conditions of holding this rank [were] not authorized by [the City Manager],

and [were] unenforceable.” (R. Aple. Supp. App. at 1.)

       Although Mr. Robbin disputed the position’s exempt status with Defendant Buller,

he ultimately signed the Rank Status Memo. He contends that he felt coerced because if

he had not signed it, he would not have received the promotion, and his “career stopped

right there.” Aplt. Br. at 7. However, when Mr. Robbin signed the Rank Status Memo, he

did not sign it under protest, nor did he raise the issue in any formal proceeding after

these meetings or investigate further. He subsequently referred to himself as an exempt

employee several times in a February 2011 email.

       In April 2011, about three years after Mr. Robbin accepted the captain position,

Interim Chief of Police Ray Rael sent Mr. Robbin a memo purporting to demote him to

lieutenant “effective immediately.” (R. Aplt. App. Vol. II at 218.) This memo stated that

Mr. Robbin was demoted because he did not wear the proper uniform and did not explain

the methodology used on certain statistical work in a satisfactory manner. The memo

explained to Mr. Robbin that he had the right of reversion to the lieutenant rank, that he

did not have a right to appeal, and that he was being demoted at Defendant Rael’s

discretion. The demotion decision was sent to human resources the same day, and Mr.

Robbin was informed that, should he be interested in early retirement at the captain level,
                                              5
he needed to decide whether to take early involuntary retirement with those higher

captain-rank retirement benefits by the next day. Mr. Robbin elected to take involuntary

early retirement available to him as a captain rather than be demoted to lieutenant.

       Following these events, Mr. Robbin sued the City of Santa Fe and several

individual defendants, including Defendants Buller and Rael, alleging violations of his

constitutional rights under 42 U.S.C. § 1983 as well as related state-law claims. The

district court granted summary judgment to all defendants on the federal claims. As to

Defendant Buller, the district court granted summary judgment on Mr. Robbin’s section

1983 claims because Defendant Buller was not directly responsible for Mr. Robbin’s

2011 demotion. The district court granted summary judgment to Defendant Rael on the

basis of qualified immunity. The district court stated that although the City could not

properly have changed the captain rank from classified to exempt while properly

following its stated rules (and thus Defendant Rael’s action was potentially a due process

violation), a reasonable officer in Defendant Rael’s position could have concluded that

Mr. Robbin was an exempt employee. Thus, a reasonable officer in Defendant Rael’s

position would not have known that his actions were clearly beyond his established

authority, and Defendant Rael would be entitled to qualified immunity. Having granted

summary judgment for the defendants on the federal claims, the district court dismissed

without prejudice Mr. Robbin’s associated state law claims.



                                            II.
                                             6
   A. Standard of Review

       Summary judgment is available if “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“We review the district court’s grant of summary judgment de novo, applying the same

legal standard used by the district court.” Garrison v. Gambro, Inc., 428 F.3d 933, 935

(10th Cir. 2005). “When applying this standard, we view the evidence and draw

reasonable inferences therefrom in the light most favorable to the nonmoving party.” Id.

   B. Defendant Buller Was Not Directly Responsible For Any Constitutional
      Violation Against Mr. Robbin, Or Alternatively the Statute of Limitations
      Had Run on Mr. Robbin’s Claim Against Mr. Buller

       The district court granted summary judgment to Defendant Buller because, at the

time Mr. Robbin was demoted in 2011, Defendant Buller was no longer in a position

where he could have “direct personal responsibility” for any 2011 deprivation of Mr.

Robbin’s constitutional rights. (R. Aplt. App. Vol. II at 221) (quoting Trujillo v.

Williams, 465 F.3d 1210, 1227 (10th Cir. 2006)). The court concluded that Mr. Robbin

could not state a claim against Mr. Buller. (Id.) This disposition of the claim was correct

if Mr. Robbin’s claim here is that he had a property right to continued employment as a

non-exempt employee provided by the state of New Mexico that could only be deprived

with due process, and that his right was violated when Defendant Rael demoted him

without due process. Cf. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)

(requiring “‘some kind of a hearing’ prior to the discharge of an employee who has a

constitutionally protected property interest in his employment”)); Greene v. Barrett, 174
                                              7
F.3d 1136, 1140 (10th Cir. 1999) (“[W]e recently held that a state statute or regulation

can create a protected property interest in a particular employment status or rank if it

places substantive restrictions on the discretion to demote an employee, such as providing

that discipline may only be imposed for cause.” (internal quotation marks omitted)). The

district court’s grant of summary judgment in favor of Defendant Buller is correct as to

such a claim, because there is no showing that Defendant Buller had any involvement

whatsoever in the 2011 demotion of Mr. Robbin. In fact, at that time, the record shows

that Mr. Buller was no longer employed by the City of Santa Fe at all.

       Here, however, it is not clear whether Mr. Robbin is asserting only that his

property right—allegedly violated by Defendant Buller—was a right to continued

employment, in which case the disposition above is the correct one, or if he also is

alternatively asserting he possessed a right to a certain continued classification of

employment that Mr. Buller violated in 2008 when he was initially appointed a police

captain as an exempt position. Cf. Mandel v. Allen, 81 F.3d 478, 480 (4th Cir. 1996)

(discussing whether “a state employee has any legitimate claim of entitlement to

continued employment at a particular classification” (internal quotation marks omitted)).

If Mr. Robbin is arguing the latter,2 we do not reach the merits of Mr. Robbin’s claims


2
  (See R. Aplt. App. Vol. I at 140 (“Defendants, Galen Buller . . . committed ultra vires
acts of changing the classified Police Captain position to exempt and was relied upon by
Chief Rael in his violation of Mr. Robbin’s implied contract and constitutional rights.”).)
But Mr. Robbin also seems to maintain that he always remained a classified employee
throughout his tenure, in which case he suffered no cognizable injury in 2008 and the
                                                                             Continued . . .
                                              8
because the statute of limitations had run on Mr. Robbin’s section 1983 claim based on

any alleged 2008 violation by Defendant Buller of Mr. Robbin’s right to a non-exempt

classification as of his appointment to the position of captain.

       Under Supreme Court precedent, for a section 1983 claim based on Mr. Buller’s

violation of Mr. Robbin’s property right to a continued employment classification, we

apply the analogous residual state limitations period for personal injury tort actions.

Wilson v. Garcia, 471 U.S. 261, 280 (1985); Owens v. Okure, 488 U.S. 235, 249-50

(1989). In New Mexico, the personal injury statute of limitations is three years from the

time the cause of action accrues. N. M. Stat. § 37-1-8. This court has held that

“[a]lthough state law determines the applicable statute of limitations period, federal law

governs the particular point in time at which a claim accrues” and that “section 1983

claims accrue, for the purposes of the statute of limitations, when the plaintiff knows or

has reason to know of the injury which is the basis of his action.” Kripp v. Luton, 466

F.3d 1171, 1175 (10th Cir. 2006) (internal quotation marks omitted). On that principle, in

Kripp, this court held that a section 1983 claim accrued at the time law enforcement

authorities seized certain property from an alleged illegal auto parts operation. Id. The

plaintiff brought 42 U.S.C. §§ 1983, 1985 actions against the law enforcement to recover

the property. Id. at 1173. The court held that the plaintiff was barred by the statute of

statute of limitations only ran when he was harmed upon dismissal in 2011, see Aplt.
Reply Br. at 10 (“Captain Robbin at material times held a protected ‘classified’ Captain
position which entitled him to the protections of the City Code and City Rules.”). In any
case, as explained, we need not decide exactly what violation he is alleging.

                                              9
limitations because the cause of action accrued at the time of seizure when plaintiff knew

of the seizure and could have brought a legal claim. Id. at 1175. Kripp specifically noted

that the cause of action did not wait to begin until the seized property was forfeited. Id.

       Similar to the situation in Kripp, here, Mr. Robbin’s cause of action against

Defendant Buller for any violation of any right to a certain employment classification—

whether carried out by coercing Mr. Robbin to sign the Human Resources Form and

Rank Status Memo or by failing to investigate the status of the captain’s rank before

demanding Mr. Robbin’s signatures—accrued in April 2008, when Mr. Robbin knew of

the injury that would be the basis of his action against Defendant Buller. Mr. Robbin

could have further pursued the matter then, yet he did not bring an action against

Defendant Buller until Defendant Rael demoted him from the captain rank over three

years later, in November 2011. Thus, Mr. Robbin did not bring a section 1983 claim

based on any violation of any right to a continued employment classification by Mr.

Buller within the three-year limitations period. Mr. Robbin’s action against Defendant

Buller is therefore barred.3




       3
        Even assuming that Mr. Robbin’s argument that Defendant Buller’s actions led
to a constructive fraud are cognizable under section 1983, that argument is similarly
barred by the statute of limitations. Mr. Robbin’s mutual mistake of fact argument is
likewise barred by the three-year statute of limitations applicable to contracts with
municipalities. N.M. Stat. § 37-1-24.

                                             10
   C. Qualified Immunity for Defendant Rael

       The district court concluded that Defendant Rael was entitled to qualified

immunity because his actions were not such that a reasonable official in his position

would have understood them to be outside the scope of his authority. This court has

observed that “[w]hen a defendant asserts qualified immunity at summary judgment, the

burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right

and (2) the constitutional right was clearly established.” Courtney v. Oklahoma ex rel.,

Dep't of Pub. Safety, 722 F.3d 1216, 1222 (10th Cir. 2013). This court maintains the

discretion to decide “which of the two prongs of the qualified immunity analysis should

be addressed first in light of the circumstances in the particular case at hand.” Id. (quoting

Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

       Mr. Robbin’s claim here is that he had a property right to continued employment

provided by the state of New Mexico that could only be deprived with due process, and

that when Defendant Rael demoted him without process, that right was violated. Aplt. Br.

at 17 (citing Loudermill, 470 U.S. at 542); see also Greene, 174 F.3d at 1140. Of course,

unless the constitutional right at issue is clearly established, the defendant receives the

protection of qualified immunity. When evaluating whether the constitutional right was

clearly established, “the touchstone of [the] inquiry is whether the officers were on notice

that their conduct was unlawful.” Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1248

(10th Cir. 2003)). In general, “[t]he law is clearly established when a Supreme Court or

Tenth Circuit decision is on point, or if the clearly established weight of authority from
                                              11
other courts shows that the right must be as plaintiff maintains.” Id. As our sister circuits

have recognized, qualified immunity also may be inappropriate when an official

“performs an act clearly established to be beyond the scope of his discretionary

authority.” In re Allen, 106 F.3d 582, 593 (4th Cir. 1997); see also Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). In these discretionary

authority situations, “[t]he defendant official bears the burden of demonstrating that the

conduct of which the plaintiff complains falls within the scope of the defendant’s duties.”

In re Allen, 106 F.3d at 594 (internal quotation marks omitted). “Put another way . . . the

defendant must have been performing a function that, but for the alleged constitutional

infirmity, would have fallen [within] his legitimate job description.” Holloman, 370 F.3d

at 1266 (emphasis in original).

       We conclude that given the arguments made before the district court, that court did

not err in deciding that a reasonable officer in Defendant Rael’s position would not have

known that Mr. Robbin could not be demoted without classified-employee procedural

protections. To determine that Mr. Robbin was an exempt employee not entitled to

procedural protections accorded a non-exempt employee, Defendant Rael could have

reasonably relied on, among other things: (1) the Rank Status Memo, which stated that

the captain rank was “exempt” and that Mr. Robbin held “this rank at the pleasure of the

Chief of Police with my approval as the City Manager,” and which Mr. Robbin signed

“acknowledge[ing]” that he “accept[ed] the above” (R. Aplee. Supp. App. at 1); (2)

Defendant Rael’s knowledge that there was no formal protest of this Rank Status Memo
                                             12
or other formal indication of Mr. Robbin’s disagreement with the transition of the captain

rank to exempt status; (3) Mr. Robbin’s own subsequent reference to himself as an

exempt employee several times in a February 2011 email; (4) Defendant Rael’s

knowledge that former City Manager Jim Romero approved then-Chief Lennen’s

proposal to make the captain position exempt in 2004; (5) Defendant Rael’s knowledge

that former Chief Lennen had consulted with the human resources, legal, and clerk’s

office departments before suggesting classifying the position of captain as an exempt

position to ensure it did not conflict with city ordinances; and (6) the police department’s

reliance on this memo, after 2004, to make every captain promotion a promotion to an

exempt position. We agree with the district court that Defendant Rael did not act in such

a way that a reasonable official in his position would have understood his actions treating

police captain as an exempt position to be outside of his authority.

       Nevertheless, on appeal, Mr. Robbin argues that Defendant Rael lacked even

colorable authority to demote him from the captain position, because only the City

Manager had authority to hire and fire employees—even exempt employees. Section 8.03

of the Santa Fe Municipal Charter states that “[t]he city manager shall have the power to

hire and fire all city employees.” (Exhibit B to Aplt. Br., Municipal Charter § 8.03.) The

Santa Fe Police Department’s Disciplinary Procedures (“Disciplinary Procedures”) set

out that “[a]ll disciplinary action shall require approval of the City Manager before

implementation.” Disciplinary Procedures ¶ 27.1.04, R. Aplt. App. Vol. I at 111. Mr.

Robbin contends that these authorities together should have put Defendant Rael on notice
                                             13
that he was acting outside of his authority in purporting to demote any employee.

       Mr. Robbin has forfeited this new argument on appeal. He did not challenge

Interim Chief of Police Rael’s authority under New Mexico law to demote employees

before the district court, and the district court expressly stated that “[n]one of the parties

assert that Defendant Rael, as the Interim Chief of Police, did not have the authority to

demote police officers, including both classified and exempt police officers.” (R. Aplt.

App. Vol. II at 225.) Under this court’s precedent, “arguments raised for the first time in

a civil appeal may be reviewed only for plain error.” Somerlott v. Cherokee Nation

Distributors, Inc., 686 F.3d 1144, 1151 (10th Cir. 2012). Mr. Robbin has not argued on

appeal that the district court committed plain error; indeed, Mr. Robbin

       hasn’t even attempted to show how his new legal theory satisfies the plain
       error standard. And the failure to do so—the failure to argue for plain error
       and its application on appeal—surely marks the end of the road for an
       argument for reversal not first presented to the district court.

Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011). “It is the

significant but limited job of our appellate system to correct errors made by the district

court in assessing the legal theories presented to it, not to serve as a second-shot

forum . . . where secondary, back-up theories may be mounted for the first time.” Id. at

1130 (internal quotation marks omitted). Mr. Robbin’s case—where the district court

expressly stated that the parties were not disputing Defendant Rael’s authority to demote

exempt officers—is exactly the type of situation where forfeiture should apply if a party

never raises the plain error issue before us.

                                                14
                                            III.

       We review the district court’s decision to decline supplemental jurisdiction over

Mr. Robbin’s state law claims for abuse of discretion. Nielander v. Bd. of Cnty. Comm'rs

of Cnty. of Republic, Kan., 582 F.3d 1155, 1172 (10th Cir. 2009). The district court

dismissed Mr. Robbin’s state law claims without prejudice because it granted summary

judgment on the federal claims. Our decision to affirm the district court’s grant of

summary judgment means that no claims over which the district court had original

jurisdiction remained before that court. We thus conclude that dismissing these state law

claims was not an abuse of discretion. See id.

                                        Conclusion

       We conclude that either Mr. Robbin could not state a claim against Defendant

Buller because Mr. Buller lacked personal responsibility for any constitutional violation

against Mr. Robbin, or that the statute of limitations effectively barred Mr. Robbin’s

claim against Defendant Buller. We further hold that defendant Rael had qualified

immunity from Mr. Robbin’s claim. Having disposed of all federal claims,4 the district


4
  On appeal, defendants filed a motion requesting that this court strike certain exhibits
they claim Mr. Robbin altered, asking that these altered exhibits be replaced with
corrected exhibits, and requesting that the court sanction Mr. Robbin and award attorney
fees to them. In making this motion to the court, defendants did not follow 10th Cir. R.
27.3(C), which requires all motions to include the opposing party’s position on the
moved-for relief:

       Every motion filed under Fed. R. App. P. 27 and this rule must contain a
       statement of the opposing party’s position on the relief requested or why
                                                                          Continued . . .
                                             15
court was within its discretion to dismiss the state claims. We therefore AFFIRM the

district court.

                                          ENTERED FOR THE COURT


                                          David M. Ebel
                                          Circuit Judge




       the moving party was unable to learn the opposing party’s position. In this
       regard, parties should make reasonable efforts to contact opposing parties
       well in advance of filing a motion.

Id. Mr. Robbin’s response claimed that he had made a printing error because of the
interface between Adobe Acrobat software and his printer functionality. Mr. Robbin
asserted that if defendants had simply contacted him as required by this circuit’s rules, he
would have corrected the change. He asks the court to grant him attorney fees
commensurate with his work responding to defendants’ motion.
       We deny both motions.

                                             16
