Ramsey v. Principi

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 9, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MELODY RAMSEY,
Plaintiff-Appellant,
v. No. 07-1465
(D.C. No. 1:04-cv-02140-LTB-BNB)
ANTHONY J. PRINCIPI, (D. Colo.)
Secretary, Veteran Affairs,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.
Plaintiff Melody Ramsey, appearing pro se, appeals from an order of the
district court dismissing all but one of the claims in her complaint and a second
order granting summary judgment to defendant on the remaining claim. We have
jurisdiction under 28 U.S.C. § 1291 and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Mrs. Ramsey is the widow of a World War II veteran buried at Fort Logan
National Cemetery in Denver, Colorado. She started volunteering at the cemetery
shortly after her husband was buried in March 2002, and sued defendant Principi
in his official capacity over events that transpired there.
Defendant moved to dismiss. The magistrate judge thoroughly reviewed
Mrs. Ramsey’s complaint and, in a recommendation filed on August 23, 2005,
recommended that all of her claims be dismissed, except for a claim for violation
of the National Environmental Policy Act (NEPA) that defendant had not
addressed.
The magistrate judge recommended that Mrs. Ramsey’s constitutional
claims be dismissed because the sovereign immunity of the Department of
Veterans Affairs was not waived under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), for constitutional claims
brought against defendant in his official capacity. FDIC v. Meyer, 510 U.S. 471,
484-85 (1994). As a result, the magistrate judge concluded that the court lacked
subject matter jurisdiction.
The magistrate judge recommended that Mrs. Ramsey’s discrimination
claims also be dismissed. The magistrate judge reasoned that Mrs. Ramsey
repeatedly asserted in her complaint that she was a volunteer at the cemetery, and
she therefore lacked standing to sue under Title VII of the Civil Rights Act of
1964 because she was not an employee or applicant for employment. See
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42 U.S.C. §§ 2000e(f), 2000e-16; Jacob-Mua v. Veneman, 289 F.3d 517, 521
(8th Cir. 2002). The magistrate judge further reasoned that the United States is
not an employer under the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12111(5)(B)(i), so Mrs. Ramsey could not bring discrimination claims against a
federal agency under the ADA. Further, because she was not an employee, she
could not bring discrimination claims against the agency under the Rehabilitation
Act of 1973. See 29 U.S.C. § 794(d); 42 U.S.C. § 12111(4).
Finally, the magistrate judge recommended that Mrs. Ramsey’s tort claims
be dismissed because she failed to exhaust her administrative remedies under the
Federal Tort Claims Act, 28 U.S.C. § 2675(a). As a result, her claims were
barred by sovereign immunity, and the court lacked subject matter jurisdiction.
Nero v. Cherokee Nation, 892 F.2d 1457, 1463 (10th Cir. 1989).
In an order filed on December 15, 2005, the district court adopted the
magistrate judge’s recommendation. The district court denied Mrs. Ramsey’s
subsequent motion to alter or amend the judgment in an order filed on January 26,
2006.
Defendant then moved for summary judgment on Mrs. Ramsey’s NEPA
claim. The magistrate judge, in a recommendation filed on July 13, 2007,
recommended that summary judgment be granted to defendant because NEPA
does not provide a private right of action. See Utah Env’l Cong. v. Russell,
518 F.3d 817, 823 (10th Cir. 2008). In an order filed on August 23, 2007, the
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district court adopted the magistrate judge’s recommendation and granted
summary judgment to defendant. The district court entered judgment in favor of
defendant on August 24, 2007.
We review the dismissal of a complaint de novo. Wyoming v. United
States, 279 F.3d 1214, 1222 (10th Cir. 2002). We also review a grant of summary
judgment de novo. Williams v. Berney, 519 F.3d 1216, 1219 (10th Cir. 2008).
Because Mrs. Ramsey is pro se, we review her pleadings and filings liberally.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).
We have reviewed the materials in light of the governing law. We are
unpersuaded by Mrs. Ramsey’s arguments on appeal, and we affirm for
substantially the same reasons as those stated by the magistrate judge in his two
recommendations and adopted by the district court.
AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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