                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      May 18, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court



    B ILLY LO RD PU N CH A RD ,

             Plaintiff-Appellant,

     v.                                                No. 05-2233
                                               (D.C. No. CIV-05-10-LH /RH S)
    TH E U NITED STA TES B UR EAU OF                     (D . N.M .)
    LA ND M ANAGEM EN T; U.S.
    GENERAL SERVICE
    ADM INISTRATION, U.S. General
    Services Administration, (President
    George W . Bush; Republic of the
    United States of N orth America),

             Defendants- Appellees.



                            OR D ER AND JUDGM ENT *


Before KELLY, BR ISC OE, and LUCERO, Circuit Judges.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      Plaintiff Billy Lord Punchard 1 appeals from the district court’s order

dismissing his complaint with prejudice on various grounds. Punchard also has

filed a number of motions, including a motion for a writ of mandamus.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the district

court’s dismissal and D EN Y his motions.

      Although Punchard’s complaint, like most of his papers, is difficult to

understand, it appears he claims that the Bureau of Land M anagement (“BLM ”)

and the General Services A dministration (“GSA”) 2 conspired unlaw fully to

deprive him of unpatented mining claims he established in 1978 on land in

Deming, New M exico, by denying him a patent and selling the land to the Luna

County Commission in 1990. The complaint appears to set forth claims for an

illegal seizure under the Fourth Amendment, a taking or due process violation

under the Fifth Amendment, a violation of the Civil Rights Act of 1871,

42 U.S.C. § 1983, and a breach of contract claim concerning a mining lease.

Punchard requests the return of his mining claims or compensatory damages in



1
 Punchard styles himself as a representative of his “co-appellant,” the Royal
Democratic States of Continental A frica Government. Noting that this
governmental entity is non-existent, a panel of this court affirmed a district court
conclusion that Punchard’s claim to be its representative is delusional. See
Punchard v. New M exico, 56 Fed. Appx. 443, 444 (10th Cir. 2003) (unpublished).
Accordingly, we disregard any reference or argument Punchard makes that
depends on that entity’s alleged existence.
2
 It appears that Punchard also names the United States and President George W .
Bush as defendants.

                                         -2-
the sum of $28 million and punitive damages of $20 million. In the alternative,

he requests a piece of property in Fort W ingate, New M exico.

      Defendants moved to dismiss the action pursuant to Fed. R. Civ.

P. 12(b)(1), (6) for lack of subject matter jurisdiction and failure to state a claim

upon which relief can be granted, and pursuant to Fed. R. Civ. P. 8(a) for failure

to set forth a short and plain statement of the claims. The district court granted

the motion on all grounds, and this appeal followed.

      W e review de novo the district court’s dismissal of an action for lack of

subject matter jurisdiction and failure to state a claim upon which relief can be

granted. U.S. W est, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999); Sutton

v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

W e review a dismissal based on Rule 8 for an abuse of discretion. Kuehl v.

FD IC, 8 F.3d 905, 908 (1st C ir. 1993). Because Punchard appears pro se, we

review his pleadings and other papers liberally and hold them to a less stringent

standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519,

520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

      Punchard’s initial argument on appeal, reiterated in his request for a writ of

mandamus, is that defendants never filed a timely answer to his complaint.

Therefore, he concludes, defendants have conceded this suit. The district court

implicitly rejected this argument, and we conclude that it lacks merit. The record

indicates that Punchard filed his complaint on January 4, 2005, and served it on

                                          -3-
the BLM and the GSA on January 11, 2005. It appears that Punchard may have

served the United States Attorney’s office on February 24 or 25, 2005. 3

Defendants had sixty days from that date, or until April 24 or 25, to file an

answ er or otherw ise respond to his complaint. See Fed. R. Civ. P. 12(a)(3)(A)

(providing that an agency of the United States has sixty days to file an answer as

measured from the date on which the United States Attorney is served).

Defendants’ April 19, 2005, motion to dismiss was timely filed in lieu of an

answer. See Fed. R. Civ. P. 12(a)(4).

      W e discern several other arguments in Punchard’s disorganized appellate

briefs. First, he contends the district court erred by determining that defendants

are immune from his conspiracy claims under 42 U.S.C. § 1983. The federal

government is not subject to suit under § 1983; instead, Punchard’s claim is

governed by Bivens v. Six Unknown Named A gents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), in which the Supreme Court recognized an

implied cause of action against federal actors in their individual capacities for

deprivation of Fourth Amendment rights. Id. at 389. Bivens actions lie only

against federal actors in their individual capacities, not in their official capacities

and not against the federal agencies for which they work. See Steele v. Fed. Bur.



3
  W e need not resolve the discrepancy between what may have been service on
the U.S. Attorney by certified mail on February 24 or 25, 2005, and the date that
accompanies the signature of the clerk of the court, M arch 25, 2005. For the sake
of argument, we assume service was completed on February 24 or 25.

                                          -4-
of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003). Punchard has not named any

federal actors in their individual capacities. Even if we treat his complaint as

setting forth a claim against the President in his individual capacity, it fails

because Punchard has not alleged personal participation by the President, as

required in a Bivens action. See id. Accordingly, the district court properly

dismissed this claim for failure to state a claim on which relief can be granted.

      Punchard argues that his conspiracy claim under § 1983 somehow falls

under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”).

Therefore, he reasons, sovereign immunity is not a defense. Punchard did not

argue in the district court that he was asserting a claim under the FTCA, and one

is not evident even from a liberal reading of his complaint. Therefore, he has

failed to preserve this issue for appellate review. See W alker v. M ather (In re

W alker), 959 F.2d 894, 896 (10th Cir. 1992). Even if we considered his

argument, his conspiracy claim is predicated on a constitutional tort, the alleged

seizure or taking of his mining claims in violation of the Fourth or Fifth

Amendment. Constitutional torts are not cognizable under the FTCA. FD IC v.

M eyer, 510 U.S. 471, 477-78 (1994). Accordingly, he has not stated an FTCA

claim on which relief can be granted. 4

4
 Punchard also takes issue with the district court’s conclusion that, under
5 U .S.C. § 702, the U nited States has not waived sovereign immunity against
claims seeking money damages that arise under the Administrative Procedures
Act (“APA ”). He argues that his claim arises under § 1983 (which we have
                                                                       (continued...)

                                           -5-
      Punchard has not challenged the district court’s conclusion that, to the

extent he seeks monetary damages in excess of $10,000, the U nited States Court

of Federal Claims has exclusive jurisdiction over his takings claim against the

United States pursuant to the Tucker A ct, 28 U.S.C. §§ 1346(a)(2) & 1491, a

conclusion with which we agree. Although we may transfer a case to the Court of

Federal Claims pursuant to 28 U.S.C. § 1631 when it is in the interest of justice,

we decline to do so here because Punchard’s takings claim accrued no later than

1990 and is barred by the six-year statute of limitations for actions against the

United States set forth in 28 U.S.C. § 2401(a).

      Based on our review of Punchard’s complaint, we find no abuse of

discretion in the district court’s decision to dismiss any other claims that may be

set forth in the complaint for failure to comply with Rule 8’s short and plain

statement requirements.

      Punchard’s argument that the district court judge had no power to grant the

motion to dismiss because Punchard asked for a jury trial has no merit. Actions

against the United States generally are tried to the court, not a jury. See

28 U.S.C. § 2402. In any event, a district court has the authority to hear and

decide defenses raised under Rule 12(b) prior to trial, see Fed. R. Civ. P. 12(d);

4
 (...continued)
treated as a Bivens claim and rejected), and that the United States has no
immunity against such claims. See Aplt. Opening Br. at 7. W e construe this
argument as an admission that Punchard does not seek relief under the APA and
address the issue no further.

                                          -6-
Christensen v. Ward, 916 F.2d 1462, 1466 (10th Cir. 1990) (holding that Seventh

Amendment right to jury trial not violated by court’s dismissal for failure to state

a claim pursuant to Rule 12(b)(6) because, as a matter of law , complaint failed to

present an issue for trial); Rosemound Sand & Gravel Co. v. Lambert Sand &

Gravel Co., 469 F.2d 416, 418 (5th Cir. 1972) (holding that Seventh Amendment

right to jury trial not violated by court’s dismissal for lack of jurisdiction).

      Punchard is not entitled to mandamus relief because his direct appeal

provides him an adequate opportunity to obtain the relief he requests in his

mandamus petition. See United States v. W est, 672 F.2d 796, 799 (10th Cir.

1982). In his motion to compel, Punchard requests this court to order defendants

to provide the relief he seeks in his complaint as some sort of settlement. This

court lacks jurisdiction to compel defendants to enter a settlement. Likewise, w e

lack jurisdiction over his motion to open an international duty-free trade zone.

W e deny his motion for a permanent injunction against removal of any

improvements to the land at issue in this case because he has not shown actual

success on the merits. See Fisher v. Okla. Health Care Auth., 335 F.3d 1175,

1180 (10th Cir. 2003).

      The judgment of the district court is AFFIRM ED and Punchard’s pending

motions are DENIED.

                                                       Entered for the Court

                                                       Carlos F. Lucero
                                                       Circuit Judge

                                           -7-
