                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 29, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 NICHOLAS HARRISON,

               Plaintiff - Appellant,                    No. 07-6297
          v.                                           (W.D. Oklahoma)
 UNITED STATES OF AMERICA,                       (D.C. No. 5:07-CV-00351-R)

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges.



I.    Introduction

      Plaintiff-Appellant Nicholas Harrison filed a pro se complaint, asserting

violations of the Federal Tort Claims Act (“FTCA”) and rights guaranteed him by

the First and Fifth Amendments. He appeals the district court’s decision

dismissing his complaint for lack of subject matter jurisdiction. The court’s order

was entered after Harrison failed to file a response to the Government’s motion to

dismiss the complaint. Harrison has also filed a motion to proceed in forma


      *
        This order and judgment is not binding precedent except under the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.
pauperis. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the

district court’s order with modification and grant Harrison’s motion to proceed in

forma pauperis.

II.   Background

      During the relevant time period, Harrison was enrolled as a student at the

University of Central Oklahoma where he participated in the United States Army

Reserve Officers’ Training Corps (“ROTC”) program. Harrison’s commanding

officer in the ROTC program was Lieutenant Colonel Stuart Jolly. When

Harrison failed to complete several ROTC program requirements, Jolly

recommended his disenrollment from the program. Harrison v. United States,

287 F. App’x 725, at *1 (10th Cir. 2008). The Board of Officers agreed with

Jolly’s recommendation, and the Army ordered Harrison’s disenrollment.

      Harrison sought judicial relief from the Army’s actions. He first filed a

suit against Jolly in Oklahoma state court. 1 Id. He then filed the federal action

that underlies this appeal. In his federal complaint, Harrison invoked the FTCA

and the First and Fifth Amendments to the Constitution. He sought both

monetary and injunctive relief.




      1
       The United States was substituted for Jolly and Harrison’s suit was
removed to federal court. Harrison’s attempt to rename Jolly as the defendant
was unsuccessful. Harrison v. United States, 287 F. App’x 725, at *2 (10th Cir.
2008).

                                         -2-
      The Government filed a motion to dismiss Harrison’s complaint, arguing

the district court lacked subject matter jurisdiction over the claims. Harrison

requested an extension of time to respond to the Government’s motion. The

district court denied Harrison’s request because it did not comply with Local Rule

7.1(h). 2 Eighteen days after his motion was denied, Harrison had not refiled his

request for an extension of time, responded to the Government’s motion, or

amended his complaint. Accordingly, the district court deemed the Government’s

motion confessed and dismissed Harrison’s complaint for lack of subject matter

jurisdiction. See W.D. Okla. LCvR7.1(g) (“Any motion that is not opposed

within 18 days may, in the discretion of the Court, be deemed confessed.”); Fed.

R. Civ. P. 12(b)(1).



      2
          Local Rule 7.1(h) reads as follows:

      All motions for extension of time shall state: (1) the date the act is
      due to occur without the requested extension; (2) whether previous
      motions for extensions have been made and the disposition of said
      requested extensions; (3) specific reasons for such requested
      extension to include an explanation why the act was not done within
      the originally allotted time; (4) whether the opposing counsel or
      party agrees or objects to the requested extension; (5) the impact, if
      any, on the scheduled trial or other deadlines; and (6) the precise
      relief requested by the motion. All such motions shall be
      accompanied by a proposed order for the Court’s use if such relief is
      granted. The proposed order, which shall not differ in any respect
      from the relief requested in the motion, shall state specifically the
      events being extended and the new dates for the deadlines.

W.D. Okla. LCvR7.1(h).

                                          -3-
III.   Discussion

       In this appeal, Harrison argues the district court erred when it dismissed the

complaint “merely because the [Government’s] motion was unopposed.” The

district court, however, did not dismiss Harrison’s complaint merely because it

was unopposed. In its motion, the Government sought dismissal pursuant to

either Rule 12(b)(1) or 12(b)(6). Although the district court’s order did not

reference either Rule, it specifically stated the complaint was dismissed for lack

of subject matter jurisdiction, which is a dismissal pursuant to Rule 12(b)(1). 3

See Merida Delgado v. Gonzales, 428 F.3d 916, 919-21 (10th Cir. 2005)

(affirming dismissal under Rule 12(b)(1) because plaintiff failed to identify a

waiver of the Government’s sovereign immunity); Ricks v. Nickels, 295 F.3d

1124, 1127 (10th Cir. 2002) (stating a dismissal under the Feres doctrine is

properly treated as a dismissal under Rule 12(b)(1)). Our review of that decision

is de novo. Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004).

Having reviewed Harrison’s complaint 4 and the arguments of the parties, we

conclude the complaint fails to allege any basis for subject matter jurisdiction

over the claims raised therein.

       3
       Harrison also alleges the complaint states an arguable due process claim
and, thus, it was error to dismiss it for failure to state a claim. The obvious
problem with this argument is that the district court did not dismiss his complaint
pursuant to Rule 12(b)(6) for failure to state a claim.
       4
       It is unnecessary to look beyond the four corners of Harrison’s complaint
to resolve the jurisdictional question.

                                         -4-
      Harrison’s complaint contains claims against the United States arising

under the FTCA and the Constitution. Although the FTCA contains a limited

waiver of the Government’s sovereign immunity, Harrison’s claims for damages

under the FTCA are barred by the Feres doctrine. Feres v. United States, 340

U.S. 135, 146 (1950). All the alleged injuries identified in Harrison’s complaint

clearly arose “out of or are in the course of activity incident to” his military

service. Id.; see also Ricks, 295 F.3d at 1130-31; Wake v. United States, 89 F.3d

53, 58-59 (2d Cir. 1996) (applying the Feres doctrine to an ROTC cadet).

Harrison’s claims for injunctive and declaratory relief cannot be brought pursuant

to the FTCA. Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840,

863 (10th Cir. 2005). As to Harrison’s constitutional claims, he wholly failed to

identify any waiver of sovereign immunity that would permit those claims to

proceed against the United States. See High Country Citizens Alliance v. Clarke,

454 F.3d 1177, 1181 (10th Cir. 2006) (“While 28 U.S.C. § 1331 grants the court

jurisdiction over all ‘civil actions arising under the Constitution, laws or treaties

of the United States,’ it does not independently waive the Government’s

sovereign immunity; § 1331 will only confer subject matter jurisdiction where

some other statute provides such a waiver.”); Marcus v. Kan. Dep’t of Revenue,

170 F.3d 1305, 1309 (10th Cir. 1999) (“Because the jurisdiction of federal courts

is limited, ‘there is a presumption against our jurisdiction, and the party invoking

federal jurisdiction bears the burden of proof.’”). Although Harrison argues in his

                                          -5-
supplemental brief that his complaint can fairly be read to seek relief pursuant to

the Administrative Procedures Act (“APA”), 5 U.S.C. § 551, or the Tucker Act,

28 U.S.C. § 1491, 5 we disagree. Even under the liberal construction accorded to

pro se complaints, no such claims can be divined from the document.

      The only error we discern in the district court’s order is the dismissal of

Harrison’s complaint with prejudice. See Brereton v. Bountiful City Corp., 434

F.3d 1213, 1216 (10th Cir. 2006) (“A longstanding line of cases from this circuit

holds that where the district court dismisses an action for lack of jurisdiction, as it

did here, the dismissal must be without prejudice.”). Because the district court

lacked jurisdiction over the claims raised in Harrison’s complaint, those claims

should have been dismissed without prejudice. Id. at 1218-19.




      5
        Both the APA and the Tucker Act contain limited waivers of the United
States’ sovereign immunity. See Hanson v. Wyatt, 552 F.3d 1148, 1153-54 (10th
Cir. 2008). Because we conclude the complaint did not implicitly invoke either
statute, it is impossible to determine whether the waiver of sovereign immunity
extends to any such alleged claims. Harrison’s failure to identify a waiver of the
Government’s sovereign immunity also renders it unnecessary to apply the test
first set out in Mindes v. Seaman, 453 F.2d 197, 201-02 (5th Cir. 1971), to
determine if his constitutional claims are justiciable. See Lindenau v. Alexander,
663 F.2d 68, 71 (10th Cir. 1981) (adopting the approach articulated in Mindes).

                                          -6-
IV.   Conclusion

      The judgment of the district court is modified to reflect that dismissal of

Harrison’s complaint is without prejudice. As so modified, the judgment is

affirmed. Harrison’s request to proceed in forma pauperis on appeal is granted.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




                                        -7-
