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

                           FOR THE TENTH CIRCUIT                         June 17, 2014
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JASON GORMAN,

             Plaintiff-Appellant,

v.                                                         No. 13-3315
                                              (D.C. No. 2:13-CV-02246-RDR-KGS)
CITY OF OLATHE, KANSAS;                                     (D. Kan.)
J. MICHAEL WILKES, City Manager;
STEVE MENKE, Chief of Police,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before McHUGH, ANDERSON, and O’BRIEN, Circuit Judges.


      Jason Gorman appeals from the district court’s order granting the defendants’

motion to dismiss on the grounds that his suit under 42 U.S.C. § 1983 was time

barred. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                      Background

      Mr. Gorman worked for several years as a police officer for the City of Olathe,

Kansas, until he was fired in February 2011. He filed an appeal and requested a

name-clearing hearing. When Mr. Gorman failed to show up for a March 2 hearing,

the matter was rescheduled for March 7. But on March 4, Mr. Gorman’s lawyer

wrote that Mr. Gorman, a member of the Kansas Army National Guard, would be

deployed on March 6 and could not attend the March 7 hearing. Nonetheless, city

officials convened the hearing on March 7, without Mr. Gorman or his lawyer. That

same morning the hearing officer wrote to Mr. Gorman to explain that

“[r]epresentatives of the City of Olathe and all witnesses requested by you were

present [this morning] and prepared for the hearing.” Aplt. App. at 33. The officer

requested a copy of Mr. Gorman’s military orders and stated that “[i]f a copy of the

orders is provided in a timely manner the appeal hearing will be continued to a future

date after your return . . . [otherwise] your recourse via this appeal hearing will be

forfeited.” Id.

      Later in the day on March 7, police department officials learned from

Mr. Gorman’s commanding officer that he would not be deployed for several months.

Separately, police officials also learned that Mr. Gorman had been at home that

morning. The assistant city attorney wrote immediately to Mr. Gorman’s lawyer

advising him that “[s]ince Mr. Gorman did not depart on Sunday [March 6] as the

City was informed, and will not depart until July or August 2011, the City will
consider Mr. Gorman’s request for an appeal [hearing] as a closed matter. No further

hearings will be scheduled.” Id. at 36.

      Several months later, Mr. Gorman’s lawyer responded to the March 7 letter.

He characterized the City as having rejected Mr. Gorman’s request for a

name-clearing hearing, and explained that his response was “delayed due to

communication difficulties with [Mr. Gorman] stemming from his deployment to

Afghanistan.” Aplt. Sealed App. at 46. He accused the City of jumping to erroneous

conclusions about the circumstances of Mr. Gorman’s deployment, and demanded “a

name-clearing hearing within sixty (60) days of his return from Afghanistan. . . .

If, within 30 days of the date of this letter, we have not received written confirmation

that the City will comply with [this] demand,” suit will be filed for violation of

Mr. Gorman’s due process rights. Id. at 47. The City responded in August that its

“decision of March 7 . . . stands. The City will not afford Mr. Gorman any further

opportunities to participate in a hearing.” Id. at 49.

      On May 22, 2013, Mr. Gorman filed suit claiming that the defendants refused

to give him a name-clearing hearing. During the litigation, the defendants learned for

the first time Mr. Gorman was not deployed to Afghanistan as part of a military unit.

Instead, Mr. Gorman explained that “[d]uring the investigation leading to the

termination of my employment, I began seeking opportunities to deploy to

Afghanistan earlier. I found that opportunity with Department of Defense contractor

AECOM which was providing counter-intelligence personnel for the War on Terror

in Afghanistan.” Id. at 20. After several fits and starts, Mr. Gorman traveled on
March 13, 2011, to AECOM’s facility in Virginia, and on to Afghanistan later that

month.

       The defendants moved to dismiss on the ground that Mr. Gorman’s suit was

barred by the two-year statute of limitations. In response, Mr. Gorman argued that

his cause of action did not accrue until August 2011, and alternatively, even if his

cause of action accrued in March, 2011, it should be tolled under Kansas’s doctrine

of equitable tolling.

       The district court treated the motion to dismiss as one for summary judgment.

It held that Mr. Gorman’s cause of action accrued on March 7, 2011. It further held

that there were no extraordinary or exceptional facts to justify application of the

doctrine of equitable tolling, and it dismissed Mr. Gorman’s suit as time barred. This

appeal followed.

                                      Discussion

       Mr. Gorman concedes that his cause of action accrued on March 7, 2011, and

that Kansas’s two-year statute of limitations applies to his claim. He also admits that

he is not entitled, per se, to the statutory protection of the Servicemembers Civil

Relief Act (the Act), 15 U.S.C. § 501-96. See § 502(1) (“The purpose[] of [the] Act

[is] [] to provide for, strengthen, and expedite the national defense through protection

extended by this Act . . . to servicemembers of the United States.”) and § 526(a)

(“The period of a servicemember’s military service may not be included in

computing any period limited by law, regulation, or order for the bringing of any

action or proceeding in a court.”). He argues, however, that because his job with
AECOM was virtually identical to what his work would have been as a member of

the Kansas Army National Guard, the district court should have expanded Kansas’s

doctrine of equitable tolling to include the time that Mr. Gorman was out of the

country.

      Because Kansas’s two-year statute of limitations applies to Mr. Gorman’s suit,

Kansas’s law concerning equitable tolling also applies. Fogel v. Pierson, 435 F.3d

1252, 1258 (10th Cir. 2006). Although “[t]his court typically reviews the district

court’s grant of summary judgment de novo[,] . . . [we] review[] the district court’s

decision not to apply equitable tolling for an abuse of discretion.” Harms v. IRS,

321 F.3d 1001, 1006 (10th Cir. 2003). “[A] court abuses its discretion only when it

makes a clear error of judgment, exceeds the bounds of permissible choice, or when

its decision is arbitrary, capricious or whimsical, or results in a manifestly

unreasonable judgment.” Queen v. TA Operating, LLC, 734 F.3d 1081, 1086

(10th Cir. 2013) (internal quotation marks omitted).

      “In a diversity case like this one, . . . our task is not to reach our own judgment

regarding the substance of the common law, but simply to ascertain and apply the

state law.” Kokins v. Teleflex, Inc., 621 F.3d 1290, 1295 (10th Cir. 2010) (internal

quotation marks and alteration omitted). Under Kansas law, equitable tolling applies

where a defendant has acted or withheld material knowledge to induce a delay in

filing a cause of action. Friends Univ. v. W.R. Grace & Co., 608 P.2d 936, 941

(Kan. 1980). In this case, the defendants did nothing to induce Mr. Gorman’s delay

in filing his cause of action. To the contrary, Mr. Gorman chose to take up
employment in a remote location. We agree with the district court that the similarity

of Mr. Gorman’s employment to his duties as a member of the Kansas National

Guard, “is [not] a sufficient[ly] extraordinary or exceptional circumstance for a

Kansas court to equitably toll the running of the statute of limitations.” Aplt. App.

at 77. More to the point, there is no Kansas law suggesting that the doctrine of

equitable tolling should be expanded to excuse the late filing of a cause of action

where the plaintiff created the conditions resulting in the delay.

      The judgment of the district court is affirmed. Mr. Gorman’s motion to file

Appellant’s Appendix of Sealed Documents under seal is denied, except as to

Attachment J at 44. Mr. Gorman is ordered to submit a copy of Attachment J that

redacts his social security number, birthdate, and passport number within fourteen

(14) days of the entry of this order and judgment.


                                                Entered for the Court


                                                Stephen H. Anderson
                                                Circuit Judge
