                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   December 7, 2015
                                                                  Elisabeth A. Shumaker
                         FOR THE TENTH CIRCUIT                        Clerk of Court
                     _________________________________

DAVID WEBB,

       Plaintiff -Appellant,

v.                                                       No. 15-4123
                                               (D.C. No. 1:15-CV-00049-DLR)
MEGAN SMITH, U.S. Marshal’s                               (D. Utah)
Service Inspector; RICK CASAS, U.S.
Marshal’s Service Inspector; JAMES A.
THOMPSON, U.S. Marshal for District
of Utah; ELIZABETH LNU, Deputy
Clerk; MICHELLE LNU, Deputy
Clerk; LOUISE S. YORK, Attorney,
Chief Deputy Clerk,

       Defendants - Appellees.
                    _________________________________

                         ORDER AND JUDGMENT *
                     _________________________________

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
                _________________________________


      Mr. David Webb alleges that he was excessively monitored by marshals

while using the Court Clerk’s office for the District of Utah. Upset by this


*
       The parties have not requested oral argument, and the Court concludes that
oral argument would not materially aid our consideration of the appeal. See Fed.
R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal
based on the briefs.

      Our order and judgment does not constitute binding precedent except under
the doctrines of law of the case, res judicata, and collateral estoppel. Fed. R. App.
P. 32.1(a); 10th Cir. R. 32.1(A).
treatment, Mr. Webb sued officials with the U.S. Marshals Service and the Court

Clerk’s office, invoking Title VI of the Civil Rights Act, the Federal Tort Claims

Act (FTCA), and state tort law.

      In screening these claims, the district court ordered dismissal on grounds

that (1) the cause of action under Title VI failed to state a claim on which relief

could be granted and (2) subject-matter jurisdiction was lacking over the FTCA

claims. Mr. Webb asked the court to vacate the dismissal, and the court declined.

Mr. Webb appeals. In our view, the district court properly dismissed the claims.

But we remand so that the district court can (1) clarify that its dismissal on the

FTCA claims is without prejudice and (2) address the state tort claims.

I.    The district court properly dismissed the Title VI claims.

      The district court dismissed the Title VI claims because Title VI does not

apply to activities conducted by federal agencies. See Soberal-Perez v. Heckler,

717 F.2d 36, 38-39 (2d Cir. 1983) (holding that Title VI does not apply to

“federal agencies which directly administer programs”). Mr. Webb concedes that

this claim was properly dismissed.

II.   The district court properly dismissed the FTCA claims.

      Mr. Webb also asserted FTCA claims against federal officers. The district

court dismissed these claims on the ground that the district court lacked subject-

matter jurisdiction because Mr. Webb had failed to exhaust available

administrative remedies. We agree with that ruling.

                                          2
         Mr. Webb points out that he sued individual officers, rather than the federal

government. But as the district court properly explained, the FTCA remedy is

exclusive because the individual officers were acting in the scope of their

employment as federal employees. As a result, the district court applied the

FTCA’s requirement of administrative exhaustion. See 28 U.S.C. § 2675(a). Mr.

Webb provides no reason to question the district court’s rationale.

         Instead, Mr. Webb asserts that the district court’s dismissal should be

vacated because he has more time to submit an administrative complaint, the

district court should not have considered exhaustion sua sponte, and the Attorney

General did not certify that the alleged conduct would have fallen within the

scope of the defendants’ federal employment. These arguments do not affect the

lack of subject-matter jurisdiction.

         For example, if we credit Mr. Webb’s arguments, he might have more time

to exhaust administrative remedies. But until he does so, his failure to exhaust

administrative remedies would prevent subject-matter jurisdiction in district

court.

         In addition, Mr. Webb argues that the district court improperly injected

itself by acting sua sponte. But “the FTCA’s exhaustion requirement is

jurisdictional,” and the district court must consider its own jurisdiction even when

it has not been challenged. Boehme v. U.S. Postal Serv., 343 F.3d 1260, 1262

(10th Cir. 2003) (quoted language treating exhaustion as jurisdictional); Tafoya v.

                                            3
U.S. Dep’t of Justice, Law Enf’t Assistance Admin., 748 F.2d 1389, 1390 (10th

Cir. 1984) (sua sponte consideration of jurisdiction).

      Mr. Webb also argues that the Attorney General never certified that the

defendants were acting in the scope of their employment. But Mr. Webb pleaded

that all defendants were federal employees and admitted in both his motion to

vacate and opening appellate brief that the defendants had acted in the scope of

their employment. R. at 3-7, 39 (“Pro Se Plaintiff Webb sued the Federal

Employees directly for actions taken while in the scope of his or her Office or

Employment.”); Appellant’s Opening Br. at 3 (identical language). As a result,

the absence of subject-matter jurisdiction was evident from the complaint, with or

without certification by the Attorney General.

      Finally, Mr. Webb argues in his second supplemental appellate brief that he

has discovered that some of the defendants are not federal employees. This

argument is immaterial because we review dismissal based on allegations in the

complaint, not new allegations surfacing for the first time during the appeal.

Thus, Mr. Webb’s allegedly new discovery would not affect the correctness of the

district court’s ruling. See Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir.

2001) (“[A] court may not consider allegations [made in a brief] inconsistent with

those pleaded in the complaint.”).

      Mr. Webb suggests that we can cure the jurisdictional defect by applying

Federal Rule of Appellate Procedure 12.1. This rule allows us to remand in

                                          4
certain circumstances when a motion is filed in district court after an appeal has

been lodged. But Mr. Webb has not identified any motions filed in district court

after beginning the appeal. As a result, Rule 12.1 would not affect the absence of

subject-matter jurisdiction.

III.   Mr. Webb did not plead any claims under Bivens.

       Mr. Webb also contends in his first supplemental appellate brief that claims

could exist under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). But Mr. Webb did not assert a Bivens claim in

the complaint. It was too late for him to initiate this claim during the appeal. See

Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006) (declining to consider

claims raised for the first time on appeal).

IV.    The district court should have specified that the FTCA claim was
       dismissed without prejudice.

       Finally, Mr. Webb points out that the district court did not say whether the

dismissal was with or without prejudice. That is true; the dismissal for lack of

subject-matter jurisdiction should have been without prejudice. See Brereton v.

Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006). As a result, we

remand with instructions for the district court to make clear that the dismissal of

the FTCA claim is without prejudice.

       The district court also was silent in its dismissal of the Title VI claims.

Because of this silence, we presume the dismissal of the Title VI claims is


                                           5
effectively with prejudice. See Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d

1292, 1299 (10th Cir. 2014) (“Dismissals for failure to state a claim are

presumptively with prejudice because they fully dispose of the case.”). The

district court did not err in making this dismissal with prejudice.

V.    The district court should address the state tort claims.

      In his complaint, Mr. Webb included state tort claims involving false

imprisonment, intentional infliction of emotional distress, negligent infliction of

emotional distress, malice, and slander. R. at 2, 8. The district court did not

address these claims and should do so on remand. 1

VI.   Disposition

      We affirm the district court rulings but remand with instructions to (1)

clarify that the dismissal of the FTCA claim is without prejudice and (2) address

the state tort claims.

                                        Entered for the Court



                                        Robert E. Bacharach
                                        Circuit Judge




1
       The district court has discretion to exercise or decline to exercise
supplemental jurisdiction over the state tort claims. 28 U.S.C. § 1367(c)(3). We
do not mean to suggest which to do; that decision remains in the district court’s
discretion.

                                          6
