Harrison v. United States

FILED
United States Court of Appeals
Tenth Circuit
April 29, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
NICHOLAS HARRISON,
Plaintiff - Appellant, No. 07-6297
v. (W.D. Oklahoma)
UNITED STATES OF AMERICA, (D.C. No. 5:07-CV-00351-R)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges.
I. Introduction
Plaintiff-Appellant Nicholas Harrison filed a pro se complaint, asserting
violations of the Federal Tort Claims Act (“FTCA”) and rights guaranteed him by
the First and Fifth Amendments. He appeals the district court’s decision
dismissing his complaint for lack of subject matter jurisdiction. The court’s order
was entered after Harrison failed to file a response to the Government’s motion to
dismiss the complaint. Harrison has also filed a motion to proceed in forma
*
This order and judgment is not binding precedent except under the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.
pauperis. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the
district court’s order with modification and grant Harrison’s motion to proceed in
forma pauperis.
II. Background
During the relevant time period, Harrison was enrolled as a student at the
University of Central Oklahoma where he participated in the United States Army
Reserve Officers’ Training Corps (“ROTC”) program. Harrison’s commanding
officer in the ROTC program was Lieutenant Colonel Stuart Jolly. When
Harrison failed to complete several ROTC program requirements, Jolly
recommended his disenrollment from the program. Harrison v. United States,
287 F. App’x 725, at *1 (10th Cir. 2008). The Board of Officers agreed with
Jolly’s recommendation, and the Army ordered Harrison’s disenrollment.
Harrison sought judicial relief from the Army’s actions. He first filed a
suit against Jolly in Oklahoma state court. 1 Id. He then filed the federal action
that underlies this appeal. In his federal complaint, Harrison invoked the FTCA
and the First and Fifth Amendments to the Constitution. He sought both
monetary and injunctive relief.
1
The United States was substituted for Jolly and Harrison’s suit was
removed to federal court. Harrison’s attempt to rename Jolly as the defendant
was unsuccessful. Harrison v. United States, 287 F. App’x 725, at *2 (10th Cir.
2008).
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The Government filed a motion to dismiss Harrison’s complaint, arguing
the district court lacked subject matter jurisdiction over the claims. Harrison
requested an extension of time to respond to the Government’s motion. The
district court denied Harrison’s request because it did not comply with Local Rule
7.1(h). 2 Eighteen days after his motion was denied, Harrison had not refiled his
request for an extension of time, responded to the Government’s motion, or
amended his complaint. Accordingly, the district court deemed the Government’s
motion confessed and dismissed Harrison’s complaint for lack of subject matter
jurisdiction. See W.D. Okla. LCvR7.1(g) (“Any motion that is not opposed
within 18 days may, in the discretion of the Court, be deemed confessed.”); Fed.
R. Civ. P. 12(b)(1).
2
Local Rule 7.1(h) reads as follows:
All motions for extension of time shall state: (1) the date the act is
due to occur without the requested extension; (2) whether previous
motions for extensions have been made and the disposition of said
requested extensions; (3) specific reasons for such requested
extension to include an explanation why the act was not done within
the originally allotted time; (4) whether the opposing counsel or
party agrees or objects to the requested extension; (5) the impact, if
any, on the scheduled trial or other deadlines; and (6) the precise
relief requested by the motion. All such motions shall be
accompanied by a proposed order for the Court’s use if such relief is
granted. The proposed order, which shall not differ in any respect
from the relief requested in the motion, shall state specifically the
events being extended and the new dates for the deadlines.
W.D. Okla. LCvR7.1(h).
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III. Discussion
In this appeal, Harrison argues the district court erred when it dismissed the
complaint “merely because the [Government’s] motion was unopposed.” The
district court, however, did not dismiss Harrison’s complaint merely because it
was unopposed. In its motion, the Government sought dismissal pursuant to
either Rule 12(b)(1) or 12(b)(6). Although the district court’s order did not
reference either Rule, it specifically stated the complaint was dismissed for lack
of subject matter jurisdiction, which is a dismissal pursuant to Rule 12(b)(1). 3
See Merida Delgado v. Gonzales, 428 F.3d 916, 919-21 (10th Cir. 2005)
(affirming dismissal under Rule 12(b)(1) because plaintiff failed to identify a
waiver of the Government’s sovereign immunity); Ricks v. Nickels, 295 F.3d
1124, 1127 (10th Cir. 2002) (stating a dismissal under the Feres doctrine is
properly treated as a dismissal under Rule 12(b)(1)). Our review of that decision
is de novo. Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004).
Having reviewed Harrison’s complaint 4 and the arguments of the parties, we
conclude the complaint fails to allege any basis for subject matter jurisdiction
over the claims raised therein.
3
Harrison also alleges the complaint states an arguable due process claim
and, thus, it was error to dismiss it for failure to state a claim. The obvious
problem with this argument is that the district court did not dismiss his complaint
pursuant to Rule 12(b)(6) for failure to state a claim.
4
It is unnecessary to look beyond the four corners of Harrison’s complaint
to resolve the jurisdictional question.
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Harrison’s complaint contains claims against the United States arising
under the FTCA and the Constitution. Although the FTCA contains a limited
waiver of the Government’s sovereign immunity, Harrison’s claims for damages
under the FTCA are barred by the Feres doctrine. Feres v. United States, 340
U.S. 135, 146 (1950). All the alleged injuries identified in Harrison’s complaint
clearly arose “out of or are in the course of activity incident to” his military
service. Id.; see also Ricks, 295 F.3d at 1130-31; Wake v. United States, 89 F.3d
53, 58-59 (2d Cir. 1996) (applying the Feres doctrine to an ROTC cadet).
Harrison’s claims for injunctive and declaratory relief cannot be brought pursuant
to the FTCA. Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840,
863 (10th Cir. 2005). As to Harrison’s constitutional claims, he wholly failed to
identify any waiver of sovereign immunity that would permit those claims to
proceed against the United States. See High Country Citizens Alliance v. Clarke,
454 F.3d 1177, 1181 (10th Cir. 2006) (“While 28 U.S.C. § 1331 grants the court
jurisdiction over all ‘civil actions arising under the Constitution, laws or treaties
of the United States,’ it does not independently waive the Government’s
sovereign immunity; § 1331 will only confer subject matter jurisdiction where
some other statute provides such a waiver.”); Marcus v. Kan. Dep’t of Revenue,
170 F.3d 1305, 1309 (10th Cir. 1999) (“Because the jurisdiction of federal courts
is limited, ‘there is a presumption against our jurisdiction, and the party invoking
federal jurisdiction bears the burden of proof.’”). Although Harrison argues in his
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supplemental brief that his complaint can fairly be read to seek relief pursuant to
the Administrative Procedures Act (“APA”), 5 U.S.C. § 551, or the Tucker Act,
28 U.S.C. § 1491, 5 we disagree. Even under the liberal construction accorded to
pro se complaints, no such claims can be divined from the document.
The only error we discern in the district court’s order is the dismissal of
Harrison’s complaint with prejudice. See Brereton v. Bountiful City Corp., 434
F.3d 1213, 1216 (10th Cir. 2006) (“A longstanding line of cases from this circuit
holds that where the district court dismisses an action for lack of jurisdiction, as it
did here, the dismissal must be without prejudice.”). Because the district court
lacked jurisdiction over the claims raised in Harrison’s complaint, those claims
should have been dismissed without prejudice. Id. at 1218-19.
5
Both the APA and the Tucker Act contain limited waivers of the United
States’ sovereign immunity. See Hanson v. Wyatt, 552 F.3d 1148, 1153-54 (10th
Cir. 2008). Because we conclude the complaint did not implicitly invoke either
statute, it is impossible to determine whether the waiver of sovereign immunity
extends to any such alleged claims. Harrison’s failure to identify a waiver of the
Government’s sovereign immunity also renders it unnecessary to apply the test
first set out in Mindes v. Seaman, 453 F.2d 197, 201-02 (5th Cir. 1971), to
determine if his constitutional claims are justiciable. See Lindenau v. Alexander,
663 F.2d 68, 71 (10th Cir. 1981) (adopting the approach articulated in Mindes).
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IV. Conclusion
The judgment of the district court is modified to reflect that dismissal of
Harrison’s complaint is without prejudice. As so modified, the judgment is
affirmed. Harrison’s request to proceed in forma pauperis on appeal is granted.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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