Silva v. United States

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 3, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
BARBARA SILVA,
Plaintiff - Appellant,
v. No. 21-2005
(D.C. No. 1:17-CV-01224-MV-JHR)
UNITED STATES OF AMERICA, (D.N.M.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BALDOCK, and EID, Circuit Judges.
_________________________________
Barbara Silva, proceeding pro se,1 appeals the district court’s order dismissing
her lawsuit against the United States as barred by sovereign immunity. For the
reasons explained below, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R.
32.1(A).
1
We liberally construe pro se filings. See Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005). But we do not act as a pro se litigant’s
advocate by, for example, “constructing arguments” or “searching the record” for
support. Id.Silva’s complaint alleges that when first assigning her a Social Security
number in 1976, the Social Security Administration negligently assigned her a
number that had already been assigned to another individual. The Administration
issued her a new and unique Social Security number in 1993. But it did not admit to
its initial mistake until 2015, after a senator intervened—and after Silva had allegedly
endured decades of negative consequences, including impacts on her credit report and
the loss of her military career when the individual who shared her Social Security
number declared bankruptcy.
As a result, Silva filed this action, seeking damages from the federal
government under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346. A
magistrate judge reviewed her complaint and reasoned, “based on the injuries to
reputational and economic interests for which . . . Silva is claiming damages,” that
her claims “sound[ed] in defamation, negligent misrepresentation, interference with
contractual rights, and negligent or intentional infliction of emotional distress.”
R. 196. The magistrate judge concluded that most of these claims were accordingly
barred by 28 U.S.C. § 2680(h), which provides that the government may not be sued
in tort for “[a]ny claim arising out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights.” And the claims that withstood § 2680(h)—
negligent or intentional infliction of emotional distress—failed to state a claim for
which relief could be granted because Silva’s allegations did not satisfy the elements
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of these claims under New Mexico law.2 The magistrate judge therefore
recommended dismissing the action for lack of subject-matter jurisdiction. See JGE
ex rel. Tasso v. United States, 772 F. App’x 608, 611 (10th Cir. 2019) (holding that
applicability of FTCA exceptions and “plaintiffs[’] fail[ure] to demonstrate
analogous tort liability under New Mexico state law, as required by 28 U.S.C.
§ 1346(b)(1),” are “[b]oth issues [that] implicate the district court’s subject-matter
jurisdiction because both are conditions on the government’s waiver of its sovereign
immunity”). The district court agreed with the magistrate judge’s analysis and
dismissed the action without prejudice.
Silva now appeals. We review de novo the district court’s dismissal of the
action for lack of subject-matter jurisdiction under the FTCA. See Estate of
Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852, 854 (10th Cir. 2005).
Silva first argues that the district court “[e]rroneously congregat[ed] the entire
case to [d]efamation and/or discretionary[-]function exceptions.” Aplt. Br. 3. But the
2
The New Mexico Supreme Court has explained that negligent infliction of
emotional distress “is an extremely narrow tort that compensates a bystander who has
suffered severe emotional shock as a result of witnessing a sudden, traumatic event
that causes serious injury or death to a family member.” Fernandez v. Walgreen
Hastings Co., 968 P.2d 774, 777 (N.M. 1998). And a claim of intentional infliction of
emotional distress requires the plaintiff to show “extreme and outrageous conduct,”
meaning conduct “which is ‘so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.’” Trujillo v. N. Rio Arriba Elec. Coop.,
Inc., 41 P.3d 333, 342–43 (N.M. 2001) (quoting Restatement (Second) of Torts § 46
cmt. d (Am. L. Inst. 1965)). As the district court put it, although “the conduct . . .
Silva alleges is highly unfortunate and has no doubt caused her emotional distress
over many years, she has not made out an actionable case of negligent or intentional
infliction of emotional distress under th[is] prevailing law.” R. 215.
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district court did not rely on § 2680(a)’s discretionary-function exception to dismiss
the case; indeed, because the government did not invoke this exception, neither the
magistrate judge nor the district court even considered it. Nor did the district court
“[d]ecide[] that the facts on the case were based only on defamation,” as Silva
argues. Id. at 4. The district court simply agreed with the magistrate judge that, “to
the extent that . . . Silva claims damages to her reputation as a result of the
Administration’s false statements, the United States retains immunity” based on
§ 2680(h)’s exceptions for libel and slander. R. 197 (emphasis added). The magistrate
judge and district court also found her complaint to sound in misrepresentation,
interference with contractual rights, and negligent or intentional infliction of
emotional distress, and the district court explained why these other types of claims
also failed to establish subject-matter jurisdiction under the FTCA. And Silva does
not address these other aspects of the district court’s decision; she only disclaims any
intention of raising a defamation claim. This argument is thus based on a misreading
of the district court’s decision, and it fails to establish reversible error.
Second, Silva argues that the United States should be subject to suit under the
FTCA because a private person in the government’s position would be liable for the
alleged wrongful conduct. However, although the FTCA generally waives sovereign
immunity for government torts for which a private person would be held liable, this
general waiver is subject to the specific exceptions listed in § 2680(h). See Ecco
Plains, LLC v. United States, 728 F.3d 1190, 1195 (10th Cir. 2013). And Silva has
not shown that the district court erred in concluding that most of her claims were
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barred by these exceptions. Further, although her emotional-distress claims are not
subject to § 2680(h)’s exceptions, she does not cite to any case in which a private
person was found liable for the infliction of emotional distress in similar
circumstances, nor does she challenge the district court’s conclusion that the
allegations in her complaint failed to state a valid emotional-distress claim.
Third, Silva appears to argue that the district court erred in dismissing the case
for lack of subject-matter jurisdiction because Silva alleged a sufficient injury to
establish Article III standing. However, the questions of standing and sovereign
immunity are separate inquiries; both must be satisfied in order for a plaintiff to
proceed in a suit against the government. See Branson Sch. Dist. RE-82 v. Romer,
161 F.3d 619, 631 (10th Cir. 1998) (addressing question of sovereign immunity after
separately holding that plaintiffs “alleged a sufficient ‘injury-in-fact’ for purposes of
Article III standing”). Regardless of whether Silva established Article III standing,
the district court could not exercise subject-matter jurisdiction over claims for which
the government had not waived its sovereign immunity. See JGE, 772 F. App’x at
611.
Lastly, Silva’s reply brief includes several new arguments. For instance, she
seems to raise a new theory of government liability, suggesting that the district court
should have treated her complaint as an action under the Administrative Procedures
Act or some other statute, rather than as an FTCA action. But “issues raised by an
appellant for the first time on appeal in a reply brief are generally deemed waived,”
even when the appellant is pro se. Wheeler v. Comm’r, 521 F.3d 1289, 1291 (10th
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Cir. 2008). We accordingly will not address the issues that Silva raises for the first
time in her reply brief. See id.In conclusion, we agree with the district court that “the conduct . . . Silva
alleges is highly unfortunate,” but these unfortunate circumstances do not negate her
responsibility to establish a valid claim for relief against the government. R. 215.
Because Silva has not shown that the district court erred in dismissing this action
without prejudice based on the government’s sovereign immunity under the FTCA,
we affirm.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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