OpenJurist

43 F3d 1482 Dimond v. United States

43 F.3d 1482

Robert L. DIMOND, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 94-2110.

United States Court of Appeals, Tenth Circuit.

Dec. 19, 1994.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

ORDER AND JUDGMENT1

Before ANDERSON, SETH, and BARRETT, Circuit Judges.

1

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

Plaintiff appeals from summary judgment entered for defendant United States of America in this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671-80. Plaintiff claimed employees of the United States Postal Service (USPC) negligently processed his application for employment as a mail carrier, violating internal procedures and ultimately misinforming him that he was medically disqualified. Although some of his allegations might implicate the Rehabilitation Act of 1973, plaintiff has consistently relied on a tort theory and expressly disavowed any claim under the Act, see, e.g., R. tab 19 at 3-4, tab 37 at 7-8. The government moved for dismissal or summary judgment, arguing that plaintiff's claim was preempted and that, in any event, it could not prevail on the merits. The district court rejected the former argument, but agreed with the latter. On de novo review, James v. Sears, Roebuck & Co., 21 F.3d 989, 997-98 (10th Cir.1994), we affirm.

3

The district court held that the evidence presented on summary judgment showed there was no triable issue of negligence as to any aspect of the case. We agree fully with the analysis of the district court and its conclusion. There certainly was nothing alleged and nothing demonstrated which would be a basis for a state negligence cause of action in these circumstances. See generally Franklin v. United States, 992 F.2d 1492, 1495 (10th Cir.1993)(liability under FTCA is governed by state law).

4

The judgment of the United States District Court for the District of New Mexico is AFFIRMED.

1

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 the court's General Order filed November 29, 1993. 151 F.R.D. 470