                                                           FILED
                                               United States Court of Appeals
                   UNITED STATES COURT OF APPEALS      Tenth Circuit

                         FOR THE TENTH CIRCUIT                  March 30, 2017

                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
    VINCENT GABRIEL,

               Plaintiff - Appellant,

    v.                                                  No. 16-1381
                                              (D.C. No. 1:14-CV-03022-KMT)
    UNITED STATES OF AMERICA,                          (D. Colorado)

               Defendant - Appellee.



                          ORDER AND JUDGMENT *


Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.



         This appeal involves the exhaustion requirement for a claim under

the Federal Tort Claims Act. The claim involves negligence at a federal

health-care facility. The district court concluded that the claim was

unexhausted, granting summary judgment to the government and

dismissing the action with prejudice.

*
      The parties do not request oral argument, and we do not believe that
oral argument would be helpful. As a result, we are deciding the appeal
based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
      We “concur in the outcome, but not with the means.” Cizek v. United

States, 953 F.2d 1232, 1233 (10th Cir. 1992). Because Mr. Gabriel failed

to present an administrative claim before filing suit, we agree with the

district court that the claim was unexhausted. But because the exhaustion

requirement is jurisdictional, the government acknowledges that the

dismissal should have been without prejudice. We agree.

1.    Standard of Review

      We construe the district court’s disposition as a dismissal for lack of

subject-matter jurisdiction. A determination of subject-matter jurisdiction

involves a question of law, which we review de novo. Walden v. Bartlett,

840 F.2d 771, 772-73 (10th Cir. 1988).

2.    Jurisdiction

      Under the Federal Tort Claims Act, a tort action “shall not be

instituted upon a claim against the United States . . . unless the claimant

shall have first presented the claim to the appropriate Federal agency and

his claim shall have been finally denied by the agency in writing . . . .” 28

U.S.C. § 2675(a). A claim is “deemed to have been presented when a

Federal agency receives from a claimant . . . an executed Standard Form 95

or other written notification of an incident, accompanied by a claim for

money damages in a sum certain . . . .” 28 C.F.R. § 14.2(a).




                                      2
         The action was filed on July 14, 2014. As of that date, the plaintiff

had not presented an administrative claim. Thus, the district court lacked

subject-matter jurisdiction.

         Mr. Gabriel argues that he exhausted administrative remedies after

filing suit. The government does not dispute that Mr. Gabriel filed an

administrative claim on April 6, 2015, which was after the suit had been

filed.

         When a claim is unexhausted prior to suit under the Federal Tort

Claims Act, the claimant cannot “cure the jurisdictional defect” while the

suit is pending. Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999).

Thus, the filing on April 6, 2015 does not trigger jurisdiction over the

earlier suit.

3.       Effect of United States v. Wong

         The plaintiff argues that in light of United States v. Wong, 135 S. Ct.

1625 (2015), the district court should have stayed the proceedings to allow

exhaustion. We disagree, for Wong did not address the exhaustion

requirement.

         The issue in Wong was “whether courts may equitably toll” the time

limits in the Federal Tort Claims Act. 135 S. Ct. at 1630. The Supreme

Court answered yes, holding that “the [Federal Tort Claims Act’s] time

bars are nonjurisdictional and subject to equitable tolling.” Id. at 1638. But

the Court did not address the statute’s exhaustion requirement. See id.

                                         3
        In our view, Wong does not affect our precedents addressing the

jurisdictional nature of the statutory exhaustion requirement. Because Mr.

Gabriel failed to exhaust administrative remedies before filing suit, the

district court lacked jurisdiction.

4.      The Plaintiff’s Argument on Definitions

        Mr. Gabriel briefly addresses 42 U.S.C. § 201, quoting this provision

as saying that “employees are liable to lawsuits when HHS does not

provide remedy.” Appellant’s Opening Br. at 17. This statute does not

contain the quoted language, and Mr. Gabriel’s argument is invalid.

        A remedy exists under the Federal Tort Claims Act; Mr. Gabriel

simply failed to satisfy the exhaustion requirement before going to court.

We do not see anything in 42 U.S.C. § 201 that would support liability

here.

5.      Proper Disposition of the Case

        The district court initially disposed of the action by granting the

government’s motion to dismiss for lack of subject-matter jurisdiction. But

the court ultimately treated the motion as one for summary judgment.

Based on this treatment, the court awarded summary judgment to the

government and dismissed the action with prejudice.

        This disposition “was ambiguous because dismissal and summary

judgment are two different dispositions.” Self v. I Have A Dream Found.‒

Colo., 552 Fed. App’x 782, 783 (10th Cir. 2013) (unpublished) (citing

                                        4
Bradley Scott Shannon, A Summary Judgment Is Not A Dismissal!, 56

Drake L. Rev. 1 (2007)). An important “distinction between these

procedures is that summary judgments always relate to the merits of the

action, whereas dismissals generally do not.” Bradley Scott Shannon, A

Summary Judgment Is Not a Dismissal!, 56 Drake L. Rev. 1, 3-4 (2007).

Therefore, we must determine whether the proper disposition was

“dismissal or summary judgment because it could not be both.” Self, 552

Fed. App’x at 783.

      Attacks on jurisdiction take two forms: facial and factual. Holt v.

United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). In a factual attack,

the movant goes “beyond allegations contained in the complaint [to]

challenge the facts upon which subject-matter jurisdiction depends.” Id. at

1003. Here, the attack was factual: The government alleged a failure to

exhaust administrative remedies, a fact which would have precluded

jurisdiction and required dismissal.

      When addressing a factual attack on jurisdiction, “a court’s reference

to evidence outside the pleadings does not convert the motion to a Rule 56

motion” for summary judgment. Id. (citing Wheeler v. Hurdman, 825 F.2d

257, 259 n.5 (10th Cir. 1987)). Conversion is appropriate only when “the

jurisdictional question is intertwined with the merits of the case.” Id. This

occurs when “subject-matter jurisdiction is dependent upon the same

statute which provides the substantive claim in the case.” Id. The

                                       5
underlying concern, however, is “not merely . . . whether the merits and

the jurisdictional issue arise under the same statute,” but instead “whether

resolution of the jurisdictional question requires resolution of an aspect of

the substantive claim.” Pringle v. United States, 208 F.3d 1220, 1223 (10th

Cir. 2000) (citing Wheeler, 825 F.2d at 259).

      Here, the jurisdictional question and the merits were not intertwined,

for the exhaustion issue did not require the district court to decide

substantive aspects of the tort claims. Accordingly, the district court

should not have converted the motion into one for summary judgment. The

proper disposition was dismissal for lack of jurisdiction, which should

have been without prejudice. See Brereton v. Bountiful City Corp., 434

F.3d 1213, 1218 (10th Cir. 2006) (noting that “dismissals for lack of

jurisdiction should be without prejudice because [a court that lacks

jurisdiction is not capable] of reaching a disposition on the merits of the

underlying claims”). The dismissal with prejudice was therefore incorrect.

6.    Conclusion

      Section 2675(a) requires claimants to exhaust their administrative

remedies before initiating a suit under the Federal Tort Claims Act.

Because this claim was unexhausted, the district court lacked jurisdiction.

      The Supreme Court’s opinion in Wong does not require a different

outcome. Wong addressed equitable tolling of the Federal Tort Claims



                                      6
Act’s time bars. The district court had no occasion to consider timeliness

here because the claim was unexhausted.

       Based on these conclusions, we remand and instruct the district court

to vacate the order granting summary judgment for the government and

dismissing the action with prejudice. The district court should instead enter

an order of dismissal without prejudice for lack of jurisdiction.

       Judge Holmes joins in full and Judge Hartz concurs in the result and joins

all except Section 5.



                                         Entered for the Court



                                         Robert E. Bacharach
                                         Circuit Judge




                                            7
