                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 25, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 JOAN HEFFINGTON, individually
 and on behalf of Mark W. Heffington
 (Deceased),
                                                        No. 09-3052
          Plaintiff - Appellant,             (D.C. No. 08-CV-04097-JAR-KGS)
                                                         (D. Kan.)
 v.

 PRESIDENT GEORGE W. BUSH;
 UNITED STATES DEPARTMENT
 OF HOMELAND SECURITY;
 CATHERINE MITCHELL, D.O.;
 ROGER THOMAS, D.O.;
 TANGLEWOOD FAMILY
 MEDICAL, P.A.; CHARLES W.
 BECK, M.D.; WICHITA CLINIC,
 P.A.; MICHAEL WILSON, M.D.; C.
 WILSON WESTBROOK, M.D.;
 JUSTIN REED, M.D.; MICHAEL G.
 PORTER, M.D.; KANSAS MEDICAL
 MUTUAL INSURANCE COMPANY,
 also known as KaMMCO,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *




      *
        This order and judgment is not binding precedent, except under the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.
Before KELLY, BRISCOE, and HOLMES, Circuit Judges. **


      Plaintiff-Appellant Joan Heffington, appearing pro se, appeals the district

court’s judgment dismissing her action with prejudice. In essence, Ms.

Heffington alleges various constitutional and state law claims against several

governmental and private defendants, including the President of the United States

and the Department of Homeland Security. Ms. Heffington claims that the

various Defendants have conspired against her and her family members, causing

her husband’s wrongful death, attempting to bring about Ms. Heffington’s death,

and causing severe emotional distress. I R. Doc. 1 at 1-17. She contends that

President George W. Bush issued a National Security Letter against her, in an

attempt to stop her nonprofit activities “which exposed government fraud.” I R.

Doc. 1 at 6-7. Ms. Heffington brings claims under the Fourth, Fifth and Sixth

amendments to the United States Constitution, as well as the Foreign Intelligence

Surveillance Act. I R. Doc. 1 at 13-14. She further raises state law claims of

wrongful death and various other torts.

      Subject matter jurisdiction is lacking over the federal claims, as it is

apparent that those claims are barred either by the discretionary function



      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

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exception or by the failure to exhaust Federal Tort Claim Act administrative

remedies. See 28 U.S.C. §§ 2401(b), 2680(a) & (h), 2675. A constitutional claim

for damages against the President or federal agencies is barred by absolute

immunity and sovereign immunity, respectively. F.D.I.C. v. Meyer, 510 U.S.

471, 484-86 (1994) (federal agencies); Nixon v. Fitzgerald, 457 U.S. 731, 749

(1982) (President). The federal claims are insubstantial and would not support

supplemental jurisdiction (nothing suggests that the private defendants acted

under color of state law), nor is there complete diversity. See Hagans v. Lavine,

415 U.S. 528, 536-43 (1974); United Int’l Holdings, Inc. v. Wharf (Holdings)

Ltd., 210 F.3d 1207, 1220 (10th Cir. 2000). Accordingly, having properly

determined that subject matter jurisdiction is lacking, the district court’s dismissal

should have been without prejudice. See Steel Co. v. Citizens for Better

Environment, 523 U.S. 83, 94-95 (1998).

      Accordingly, we DISMISS this appeal for lack of subject matter

jurisdiction and REMAND to the district court to vacate its order and judgment

and dismiss this action without prejudice for lack of subject matter jurisdiction.

Furthermore, we DENY Ms. Heffington’s request to proceed IFP.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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