                                                                          FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    August 10, 2012
                                      PUBLISH                     Elisabeth A. Shumaker
                                                                      Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT



 JIMMIE ALLISON,

              Plaintiff-Appellant,
       v.                                                  No. 10-2237
 BOEING LASER TECHNICAL
 SERVICES,

              Defendant-Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW MEXICO
                  (D.C. NO. CIV-09-00275-RHS-LFG)


Michael L. Danoff, Michael Danoff & Associates, P.C., Albuquerque, New
Mexico, for Appellant.

James K. Mackie (Erica K. Rocush with him on the brief), Ogletree, Deakins,
Nash, Smoak & Stewart, P.C., Tucson, Arizona, for Appellee.


Before TYMKOVICH, SEYMOUR, and GORSUCH, Circuit Judges.


TYMKOVICH, Circuit Judge.


      Under a body of constitutional law applicable to federal enclaves, U.S.

Const. art. I, § 8, cl. 17, state law that is adopted after the creation of the enclave

generally does not apply on the enclave. A federal enclave is created when a state
cedes jurisdiction over land within its borders to the federal government and

Congress accepts that cession. These enclaves include numerous military bases,

federal facilities, and even some national forests and parks. Federal enclave

doctrine operates as a choice of law doctrine that dictates which law applies to

causes of action arising on these lands.

      It is well-established that after a state has transferred authority over a tract

of land creating a federal enclave, the state may no longer impose new state laws

on these lands. But state laws enacted before the cession continue to apply unless

Congress specifically overrides them. The question here is whether state common

law causes of action recognized after the state ceded the enclave to the federal

government are available on federal enclaves. This question is governed by a

long string of Supreme Court precedent that makes it clear that the law on a

federal enclave is the state law that governed the land at the time the federal

government established the enclave, not state law enacted thereafter—unless that

law was expressly adopted by the enclave’s new sovereign, the federal

government.

      Jimmie Allison’s causes of action arose from conduct on Kirtland Air Force

Base, a federal enclave established in 1954. Because Allison’s state law claims

are based on legal theories created by common law after that date, they are barred

unless federal statutory law allows them to go forward. Because no federal

statute authorizes state employment and tort claims of the sort here to be asserted

                                           -2-
against federal contractors, Allison’s suit is barred by the federal enclave

doctrine.

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we therefore

AFFIRM.

                                 I. Background

      Allison was a civilian employee of Boeing Laser Technical Services, a

federal contractor located on Kirtland Air Force Base. Kirtland Air Force Base is

a federal enclave: it is located on land that New Mexico ceded to the federal

government in 1952 and 1954. Since that time the federal government has

exercised exclusive jurisdiction within the boundaries of the Base.

      Allison was terminated by Boeing on December 31, 2007. He filed suit in

state court, alleging that Boeing discharged him in retaliation for reporting

corporate fraud to the Air Force. His claims were all based on state law

theories—wrongful discharge, breach of implied contract, breach of covenant of

good faith and fair dealing, retaliatory discharge, prima facie tort, and

defamation.

      Boeing removed the case to federal court and moved for summary

judgment, asserting that these causes of action (except for defamation) are not

available for conduct occurring on Kirtland Air Force Base under the federal

enclave doctrine. The district court granted partial summary judgment in favor of

Boeing on all of Allison’s employment claims on the ground that those causes of

                                         -3-
action were not recognized by New Mexico courts prior to 1954. The defamation

claim was dismissed, and the district court entered final judgment in favor of

Boeing.

                                  II. Discussion

      Allison challenges the district court’s dismissal of his employment claims,

arguing that the federal enclave doctrine does not displace state common law

adopted after the cession of Kirtland in 1954.

      A. Federal Enclave Doctrine

      The Constitution empowers Congress to exclusively regulate properties

acquired from state governments. Congress “shall have Power”

      To exercise exclusive Legislation . . . over all Places purchased by
      the Consent of the Legislature of the State in which the Same shall
      be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and
      other needful Buildings.

U.S. Const. art. I, § 8, cl. 17 (emphasis added). 1

      Thus, when “the United States acquires with the ‘consent’ of the state

legislature land within the borders of that State . . . the jurisdiction of the Federal

Government becomes ‘exclusive.’” Paul v. United States, 371 U.S. 245, 264

(1963). “The power of Congress over federal enclaves that come within the scope

of Art. I, § 8, cl. 17, is obviously the same as the power of Congress over the


      1
         The federal government may also create these enclaves by reserving
jurisdiction when a state first enters the Union. Kelly v. Lockheed Martin
Services Group, 25 F. Supp. 2d 1, 3 (D. Puerto Rico 1998).

                                          -4-
District of Columbia” and “by its own weight, bars state regulation without

specific congressional action.” Id. at 263. This exclusive jurisdiction is

“legislative,” meaning the laws and statutes applied to these locations must be

supplied by the federal government, not the states. Pac. Coast Dairy v. Dep’t of

Ag. of Cal., 318 U.S. 285, 294 (1943). “When Congress legislates with respect to

the District of Columbia and federal enclaves it acts as a state government with

all the powers of a state government,” and thus “Congress acts as a state

government with total legislative, executive and judicial power.” United States v.

Jenkins, 734 F.2d 1322, 1325–26 (9th Cir. 1983).

      Over the years, Congress has enacted assimilative laws that permit some

state laws—particularly criminal laws—to apply to federal enclaves and that

allow state crimes to be prosecuted in federal courts. See United States v.

Sharpnack, 355 U.S. 286, 294–95 (1958). But in many important areas of law

that are traditionally the responsibility of states—including most state

employment law—there is no federal assimilative statute.

      The central principle of federal enclave doctrine is that Congress has

exclusive legislative authority over these enclaves. But in the absence of

applicable federal legislation displacing state law, those state laws that existed at

the time that the enclave was ceded to the federal government remain in force.

“Since a State may not legislate with respect to a federal enclave unless it

reserved the right to do so when it gave its consent to the purchase by the United

                                         -5-
States, only state law existing at the time of the acquisition remains enforceable,

not subsequent laws.” Paul, 371 U.S. at 268. Thus, the federal government

acquires property subject to state law.

      The Constitution does not command that every vestige of the laws of
      the former sovereignty must vanish. On the contrary its language has
      long been interpreted so as to permit the continuance until abrogated
      of those rules existing at the time of the surrender of sovereignty
      which govern the rights of the occupants of the territory transferred.
      This assures that no area however small will be left without a
      developed legal system for private rights.

James Stewart & Co. v. Sadrakula, 309 U.S. 94, 99–100 (1940). And even

though state law will not remain static outside the enclave, any changes made to

the state law applicable within the enclave must be a matter of federal law.

Because “future statutes of the state are not a part of the body of laws in the

ceded area,” “Congressional action is necessary to keep [state law] current.”

James Stewart, 309 U.S. at 100.

      Like most general principles, the law of federal enclaves admits exceptions.

The Supreme Court has recognized at least three exceptions to the rule that only

state law in effect at the time of cession applies within the federal enclave: 1)

where Congress has, by statute, provided a different rule; 2) where the state

explicitly retained the right to legislate over specific matters at the time of

cession; and 3) where minor regulatory changes modify laws existing at the time

of cession.




                                          -6-
      The first exception recognizes the obvious fact that Congress can legislate

on behalf of the enclave and may provide for the application of state laws enacted

after the creation of the enclave. See Sharpnack, 355 U.S. at 294–95. Thus, for

example, the first Federal Crimes Act, enacted in 1790, defined a number of

federal crimes that applied to federal enclaves, and in 1825 Congress adopted the

first Assimilated Crimes Act, which allowed state criminal codes to apply to

crimes committed on federal enclaves. Id. at 288, 290. State criminal codes now

apply to crimes committed on military bases, Indian reservations, federal

facilities, and public lands unless other federal statutes bar their application.

Congress has also allowed the application of state law to a variety of civil claims

in federal enclaves, such as wrongful death, 16 U.S.C. § 457; workers’

compensation, 40 U.S.C. § 3172; unemployment compensation, 26 U.S.C.

§ 3305(d); and fish and game regulation, 10 U.S.C. § 2671.

      But no federal statute yet allows the broad application of state employment,

tort, and contract law to federal enclaves. And “it is well established that in order

for Congress to subject a federal enclave to state jurisdiction, there must be a

specific congressional deferral to state authority over federal property.” West

River Elec. Ass'n, Inc. v. Black Hills Power and Light Co., 918 F.2d 713, 719 (8th

Cir. 1990).

      The second exception deals with those powers the states expressly reserved

at the time of cession. In James v. Dravo Contracting Co., 302 U.S. 134, 148–49

                                          -7-
(1937), the Supreme Court upheld the power of states to transfer only partial

jurisdiction to the federal government, retaining some authority over the ceded

lands. Common reservations of power include the authority to collect state taxes

and the right to serve civil and criminal process within an enclave. See, e.g.,

James, 302 U.S. at 149, and Paul, 371 U.S. at 266 (discussing West Virginia and

California federal enclave cession consent statutes). Reservations may also be

much broader, preserving a wide range of state powers. See United States v.

Fields, 516 F.3d 923, 929 (10th Cir. 2008) (explaining that an Oklahoma cession

statute “indicates that the United States is being ceded full civil and criminal

jurisdiction, with a concurrent jurisdiction reserved to the State”).

      The third exception applies to minor regulatory changes to state programs

that existed at the time of cession. In Paul, the Supreme Court considered state

regulatory schemes that were in place when the state ceded sovereignty but

required ongoing maintenance from a regulatory body. The Court found, for

example, that changes in milk pricing regulations applicable on a federal enclave

might be permissible “provided the basic state law authorizing such control has

been in effect since the time[] of [cession].” Paul, 371 U.S. at 269.

      With this general framework in mind, we turn to the employment laws of

New Mexico, and whether they apply on Kirtland Air Force Base.




                                          -8-
      B. Application of New Mexico Employment Law

      Under federal enclave law no New Mexico law adopted after 1954 applies

on Kirtland Air Force Base unless it fits under one of the three exceptions

discussed above. As to the first exception, no federal statute authorizes the

application of New Mexico employment law enacted after 1954 to the Base. All

of Allison’s employment and tort claims are based on common law causes of

action that arose after 1954, so on its face the enclave doctrine presents an

obstacle to Allison’s claims. Given this obstacle, Allison makes several

arguments why we should disregard traditional federal enclave principles or give

New Mexico law retroactive effect under the second and third exceptions

described above.

      He first argues that the Supreme Court would disregard its precedent and

instead apply a rule that only state law inconsistent with federal law does not

apply on federal enclaves. He then asks us to find that federal enclave doctrine

does not apply to New Mexico common law. In support of this second argument

he presents three theories: Federal enclave law (1) does not apply to judge-made

common law at all; (2) was displaced by New Mexico common law because a

New Mexico statute in effect prior to 1954 authorizes future changes to the

common law of contracts and employment; and (3) would recognize new

employment-related causes of action because they fall within the regulatory

exception carved out by Paul.

                                         -9-
      We find none of these arguments persuasive.

      1. Modification of Federal Enclave Law

      Allison first asks us to modify federal enclave law and conclude that all

state laws that do not conflict with federal law or policy are applicable on federal

enclaves. This position is at odds with binding Supreme Court precedent.

      In support of this argument, Allison points to Howard v. Comm’rs of

Sinking Fund of City of Louisville, 344 U.S. 624 (1953). In that case, the

Supreme Court allowed the City of Louisville to annex land containing a federal

enclave (a Naval ordinance plant) and impose municipal taxes on its employees.

In rejecting the argument that employees at the plant were immune from city

taxes, the Court found the “fiction of a state within a state can have no validity to

prevent the state from exercising its power over the federal area within its

boundaries, so long as there is no interference with the jurisdiction asserted by the

Federal Government.” Id. at 627. As a result, the Court found that a state may

lawfully redraw “its municipal structures,” even when those structures include an

enclave, id. at 626, and that those municipal organizations may then tax

employees on the enclave. Since federal law specifically granted the power to tax

to the states and to “any duly constituted taxing authority therein,” id. at 627, the

Court found no conflict with federal enclave principles. But nothing in Howard

suggests the Court retreated from the rule that only state laws in affect at cession

apply to the enclave. “Howard does nothing to alter the exercise of exclusive

                                         -10-
federal jurisdiction over federally-owned territory.” Black Hills Power and Light

Co. v. Weinberger, 808 F.2d 665, 670–71 (8th Cir. 1987). To accept Allison’s

argument, we would have to conclude that Howard swallowed most of federal

enclave law.

          In any event, the Supreme Court unambiguously affirmed the general rule

that we look to the date of cession to determine which state laws apply to the

federal enclave in Paul, decided a decade after Howard. That rule is binding on

us. Even if we doubted the wisdom of Supreme Court precedent on this point, we

are not free to ignore it: “[O]ur job as a federal appellate court is to follow the

Supreme Court’s directions, not pick and choose among them as if ordering from

a menu.” Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008). 2

      Allison makes a final related argument—that federal enclave law creates an

unequal and fundamentally unfair system by not allowing a remedy for certain

wrongful conduct on enclaves. But Allison does not explain why the federal law

that applies to the enclave is inadequate and inferior as a whole. While not every

cause of action recognized by state law applies to conduct on a federal enclave,

that is a natural result of the relationship between the state and federal sovereigns.


      2
         One commentator suggests the Supreme Court in Evans v. Cornman, 398
U.S. 419 (1970), adopted and extended the “no interference” rationale of Howard
to the point of largely overruling Paul. We see no conflict between these two
lines of cases. Evans merely affirmed that residents of a federal enclave are
citizens of the state and have the right to vote in state and local elections. See R.
Haines, Jr., Federal Enclave Law 8 (2011).

                                         -11-
Allison has exactly the same rights that a plaintiff in New Mexico would have had

in 1954, plus any additional federal rights that have been created since that time,

including all of the federal civil rights laws and employment compensation laws.

      In sum, we see no fundamental unfairness in holding that the only causes of

action available for controversies arising on Kirtland are those that were

recognized before the land was ceded to the exclusive federal jurisdiction of the

United States in 1954.

      2. Common Law Claims

      Allison next makes a series of related arguments attempting to show that

the New Mexico common law of employment is not displaced by federal enclave

law. He argues that either (1) federal enclave doctrine does not apply to the

common law developed by judges, rather than legislatures, or (2) New Mexico

statutory law, in particular, operates to make changes in common law causes of

action retroactive.

             Common Law Exemption

      Allison first claims state common law is exempt from federal enclave

analysis. Thus he argues that even if later-adopted state statutes do not apply to

the enclave, the same is not true for changes to state common law. In support of

this proposition, he points to the lack of binding Supreme Court precedent on the

application of federal enclave principles to evolving common law doctrine and

urges us to limit the application of federal enclave doctrine to state statutes.


                                         -12-
      We see no principled reason to treat state common law differently than

state statutory law. Judge-made common law is no different than legislature-

made law in application and effect. When a state court adopts a new cause of

action through its common-law powers, that cause of action functions no

differently than if it had been created by the state legislature. “The common law

so far as it is enforced in a State, whether called common law or not, is not the

common law generally but the law of that State existing by the authority of that

State.” Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938). This is true whatever

“the voice adopted by the State as its own (whether it be of its Legislature or of

its Supreme Court).” Id. When a state speaks through its courts, it creates new

law no less than when it speaks through its legislature.

      The Supreme Court has repeatedly recognized that only those state laws

passed before the cession of a federal enclave apply on the enclave: “Since only

the law in effect at the time of the transfer of jurisdiction continues in force,

future statutes of the state are not a part of the body of laws in the ceded area.”

James Stewart, 309 U.S. at 100. This principle applies equally to state common

law, and Allison identifies no reason to apply it differently. Nothing in Supreme

Court precedent suggests that the federal enclave doctrine does not apply to new

laws created by courts the same way that it applies to new laws created by

legislatures. And it would be an odd arrangement if a state judicial branch had




                                          -13-
the power to create binding common law that exceeded the reach of the state

legislative branch. 3

       Our conclusion is supported by the weight of authority from other courts.

See, e.g., Cooper v. S. Cal. Edison Co., 170 F. App’x 496, 498 (9th Cir. 2006)

(unpublished) (“[C]laims of intentional and negligent infliction of emotional

distress and retaliation” are “barred by the federal enclave doctrine” because they

had not been recognized in California prior to cession of Camp Pendleton.); Celli

v. Shoell, 995 F. Supp. 1337, 1343–44 (D. Utah 1998) (holding “under federal

enclave jurisdiction, the court applies the state law in effect at the time of the

transfer of jurisdiction,” and “[a]ccordingly, the court looks to Utah law in effect

in 1943 to determine whether the state recognized the various common law claims

asserted by plaintiffs.”); Stiefel v. Bechtel Corp., 497 F. Supp. 2d 1138, 1149

(S.D. Cal. 2007) (holding because “[p]laintiff does not argue that a claim for

wrongful termination in violation of public policy comes within a reservation of

jurisdiction or that it was adopted by Congress. Therefore this claim is barred by

the federal enclave doctrine.”); Sundaram v. Brookhaven Nat. Laboratories, 424

F. Supp. 2d 545, 569–70 (E.D.N.Y. 2006); Kelly, 25 F. Supp. 2d at 6 (explaining

federal enclave “analysis considers whether either the state law existed at the time



       3
         While federal enclave law locks in place state law at the time of the
cession, this is of no moment. As discussed above, if state law in effect on
federal enclaves fell out of date, “Congressional action [would be] necessary to
keep it current.” James Stewart, 309 U.S. at 100.

                                         -14-
of cession and has not been abrogated by Congress, whether a relevant

predecessor state law existed, or whether Congress has specifically acted to make

state law applicable on the enclave”); Orlovetz v. Day & Zimmerman, Inc., 848

P.2d 463, 466 (Kan. App. 1993) (rejecting a Kansas law wrongful termination

claim because “such remedy must have been available in Kansas at the time of the

creation of the federal enclave where plaintiff worked”).

      In short, federal enclave doctrine applies to state common law adopted after

cession in exactly the same manner as it applies to state legislation adopted or

amended after cession.

             New Mexico Statute—NMSA § 38-1-3

      Allison next argues a New Mexico statute that predated the establishment

of Kirtland gives later-created employment common law retroactive effect. His

contention is that even if common law in general should be treated like state

statutory law, NMSA § 38-1-3 was on the books in 1954, and it makes newly

recognized common law retroactive to before 1954.

      At the time of statehood, New Mexico adopted a statute recognizing the

common law of England and America as the law of the new state. Its modern

codification provides that “[i]n all the courts in this state the common law as

recognized in the United States of America, shall be the rule of practice and

decision.” NMSA § 38-1-3. Allison argues that because this statute was passed

before 1954, all New Mexico common law must also be deemed to the date of the


                                        -15-
statute’s enactment. 4 His argument is better understood as claiming New Mexico,

as a part of its reservation of state law when Kirtland was created, preserved the

application of future changes to state common law to federal enclaves.

      But neither of these theories can be reconciled with the text and history of

the New Mexico statute. The New Mexico Supreme Court has recognized that

NMSA § 38-1-3 is the modern codification of the principle that the

      law of England, both statutory and decisional, as developed by
      Parliament and the courts as of 1776 [was] incorporated into New
      Mexico law by the Territorial Legislature in 1876. 1876 N.M. Laws,
      ch. 2 (now codified as § 38-1-3); see Boddy v. Boddy, 77 N.M. 149,
      152, 420 P.2d 301, 303 (1966) (New Mexico adopted British
      decisions and non local statutes “which were in force at the time of
      American separation from England, and made [them] binding as the
      rule[s] of practice and decision in the courts of this State” through §
      38-1-3).

Torrance Cnty. Mental Health Program, Inc., v. N.M. Health & Env’t Dep’t., 830

P.2d 145, 150 (N.M. 1992). These laws “and similar decisions, to the extent they

do not rest on constitutional requirements, are of course always open to

legislative modification; but until such legislative change they represent the rules

for decision of legal disputes unless and until changed by subsequent judicial

overruling or modification.” Id. at 151.




      4
         He also makes a broader claim that if any state in the Union recognized a
common law cause of action, that action would be retroactively available in New
Mexico. Nothing in the statute can be read to incorporate the various laws of
other states as New Mexico law, either at statehood or anytime thereafter.

                                        -16-
      Thus, the statute only served to instruct courts about what precedents to

apply when New Mexico was a new state and had few judicial precedents of its

own. The “common law” of England as it existed in 1776—and recognized

through NMSA § 38-1-3—does not prevent New Mexico from adopting new

common law rules. And the statute obviously does not dictate that new common

law rules judicially created after the date of statehood should be applied

retroactively to the date of statehood just because they are “common law.”

             Paul Exception

      Allison’s final common law argument is that employment common law

causes of action recognized by New Mexico after the cession are retroactive

because they are modifications to state law that existed prior to cession rather

than new laws. He bases this argument on the regulatory exception the Supreme

Court recognized in Paul, claiming changes to state common law are no different

than changes to any other state regulatory programs that existed at cession.

      In Paul, the Supreme Court considered whether state milk price control

regulations that were set up before the cession of the enclave could be updated by

administrative or legislative action after cession. The Court had previously

addressed this particular California price control regime and found that it did not

apply on a military base that had been ceded to the federal government before the

price control regime was enacted. Pacific Coast Dairy v. Department of




                                        -17-
Agriculture, 318 U.S. 285, 294 (1943). 5 But in Paul, the Court considered the

regime’s application on a different enclave that was ceded after the price control

regime was established. The Court was asked to determine which milk prices to

use, the prices as of the time of cession or prices later adopted by state regulatory

officials.

       The Court concluded that the state could modify its regulations pursuant to

the program and apply the updated prices to milk sales on the enclave:

       The United States [claims] California is trying to enforce its current
       regulatory scheme, not the price regulations in effect when the
       purchases were made. Yet if there were price control of milk at the
       time of the acquisition and the same basic scheme has been in effect
       since that time, we fail to see why the current one, albeit in the form
       of different regulations, would not reach those purchases and sales
       of milk on the federal enclave made from nonappropriated funds.
       Congress could provide otherwise and has done so as respects
       purchases and sales of milk from appropriated funds. But since there
       is no conflicting federal policy concerning purchases and sales from
       nonappropriated funds, we conclude that the current price controls
       over milk are applicable to these sales, provided the basic state law
       authorizing such control has been in effect since the times of these
       various acquisitions.

Paul, 371 U.S. at 269 (emphasis added).



       5
         Allison points to a case decided the same day as Pacific Coast Dairy for
support—Penn Dairies, Inc. v. Milk Control Commission of Pennsylvania, 318
U.S. 261(1943). But that case involved regulation on state land, and in no way
conflicts with Pacific Coast Dairy. The “distinction between regulation on
federal land and on state land was not a technical one, but was necessary to
preserve the balance between national and state power and honor Congress’
exclusive jurisdiction under the Constitution.” Black Hills Power and Light Co.
v. Weinberger, 808 F.2d 665, 668 (8th Cir. 1987).

                                        -18-
      From this, Allison argues that the changes in New Mexico employment law

between 1954 and today, which include various shifts away from employment at

will rules, are analogous to the maintenance of a regulatory scheme as

contemplated by Paul. As he articulates it, since New Mexico had employment

law before the cession—employment at will—his causes of action are merely

relatively minor expansions of that pre-existing law. We disagree.

      None of the causes of action Allison raises here are incremental changes to

an existing regulatory scheme. Rather, they are substantial new incursions into a

field that was previously unregulated, or, if at all, regulated very lightly. Even if

Paul gave states some authority to modify existing regulatory programs, the

causes of action here represent the wholesale adoption and application of a new

body of substantive state employment and tort law where none previously existed.

      The language in Paul, moreover, suggests a narrow interpretation. The

Supreme Court held that the newly adopted milk prices could apply only if the

“same basic scheme” was in place before cession. And the price adjustment was

part of the application of the program, not a change in its design. This adjustment

is a far stretch from the existence of some general state rule such as the “law of

contracts” or even the “law of employment” that would effectively reserve the

power of future state judicial or legislative bodies to impose new substantive law

in those fields. Paul, 371 U.S. at 269. Under Allison’s theory of Paul, federal




                                         -19-
enclave law would be infinitely malleable as long as some general legal principle

pre-dated the cession of state land. This interpretation cannot be correct.

      In short, this limited rule from Paul does not extend to new causes of

action developed under the common law, and its exception does not apply here.

Thus, Allison can bring his claims only if the state-law causes of action they

depend on were available prior to 1954.

       C. New Mexico Law in 1954

       We now must examine each of Allison’s employment claims to determine

whether they would have been available in New Mexico prior to 1954. We find

they would not.

       1. Breach of Implied Contract

       Allison’s claim for breach of an implied employment contract is based on

Boeing’s employment manual, which provides certain procedures that Boeing will

follow before taking an adverse employment action. He contends that Boeing

failed to follow those procedures and breached an implied contract right.

       New Mexico did not recognize an implied contract for employment arising

from an employment manual until 1980. See Forrester v. Parker, 606 P.2d 191

(N.M. 1980); Sanchez v. The New Mexican, 738 P.2d 1321, 1324 (N.M. 1987).

Allison attempts to avoid this problem by claiming New Mexico common law

generally allowed implied contracts prior to 1954. But that does not change the

fact that at the time of cession, the New Mexico courts did not recognize an

                                        -20-
implied employment contract that could be breached by failure to follow certain

procedures.

       2. Wrongful Discharge

       Next, Allison claims Boeing violated state wrongful discharge law. In

support of his position that a cause of action for wrongful discharge was adopted

before 1954, Allison cites Kiker v. Bank Sav. Life Ins. Co., 23 P.2d 366, 367

(N.M. 1933). But in Kiker, the employee relied on a written employment contract

that placed specific limitations on termination. Without a written contract, New

Mexico courts in 1954 would not have found common law protection against

wrongful discharge. Vigil v. Arzola, 699 P.2d 613, 618 (N.M. Ct. App. 1983)

(rev'd on other grounds, 687 P.2d 1038 (N.M. 1984)).

       3. Breach of Covenant of Good Faith and Fair Dealing

       Allison asserts a claim based on the breach of an implied covenant of good

faith and fair dealing. But New Mexico courts do not recognize breach of an

implied covenant of good faith and fair dealing as a cause of action in at-will

employment relationships. Henning v. Rounds, 171 P.3d 317, 323 (N.M. Ct. App.

2007); Bourgeous v. Horizon Healthcare Corp., 872 P.2d 852, 856 (1994) (“We

have declined to recognize a cause of action in an at-will contract for breach of an

implied covenant of good faith and fair dealing.”). This cause of action did not

exist in 1954 in an at-will employment relationship.




                                        -21-
       4. Retaliatory Discharge

       Allison claims Boeing terminated him in retaliation for exposing corporate

misconduct. But in New Mexico the tort of retaliatory discharge was not

recognized until thirty years after the cession of the Base. As the New Mexico

Supreme Court acknowledged in 1983: “[T]he appellate courts of this State have

not to date recognized a cause of action for retaliatory discharge.” Vigil, 699

P.2d at 618. As with wrongful discharge, the law of New Mexico allowed for

termination at will in 1954, and retaliation was not an implied exception to that

rule until years later.

       5. Prima Facie Tort

       Finally, Allison pleaded a claim for prima facie tort, a cause of action

aimed at unjustified intentional and malicious conduct causing injury. New

Mexico first recognized a cause of action for prima facie tort in 1990 in Schmitz

v. Smentowski, 785 P.2d 726 (N.M. 1990)). Schmitz forthrightly stated it was

adopting a tort not “recognized by the heretofore accepted areas of intentional

tort” on the basis of its common law authority to “to recognize changing

circumstances that our evolving society brings to our attention.” Schmitz, 785

P.2d at 736. While the New Mexico Supreme Court is, of course, entitled to

create new theories of tort liability, for our purposes it is clear that the doctrine of

prima facie tort did not exist in New Mexico until 1990.

                                       *    *     *

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       In sum, none of the employment causes of action raised by Allison in his

complaint existed when the federal government established Kirtland Air Force

Base. Allison would have had no cause of action in 1954, and he has no cause of

action now.

                               III. Conclusion

       For the reasons stated above, we AFFIRM the district court’s order of

summary judgment.




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