                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JUL 9 2003
                          FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


    DAWN A. SWEAZEY, personal
    representative of the estate of
    MELVIN SWEAZEY, SR., for herself
    and for the benefit of DONNIE
    SWEAZEY, MELVIN SWEAZEY,                           No. 02-4206
    JR., and AUDREY SWEAZEY,                    (D.C. No. 2:01-CV-796-TS)
                                                        (D. Utah)
              Plaintiff-Appellant,

    v.

    UNITED STATES by and through
    VETERANS ADMINISTRATION
    MEDICAL CENTER of Salt Lake
    City, Utah,

              Defendant-Appellee.


                          ORDER AND JUDGMENT            *




Before KELLY , ANDERSON , and O’BRIEN , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
      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.

      Plaintiff Dawn A. Sweazey, as personal representative of the estate of her

late husband, Melvin Sweazey, Sr., and for herself and their children, Donnie,

Melvin Jr., and Audrey, appeals from an order of the district court dismissing this

action. We affirm.

      Mr. Sweazey joined the Marine Corps in 1960 at the age of seventeen, at

which time he began smoking. He was discharged in 1964. He later developed

emphysema and chronic obstructive pulmonary disease, for which he was treated

by defendant Veterans Administration Medical Center of Salt Lake City (VA).

Mr. Sweazey died in October 1997, following surgery at the VA and a resulting

infection. At the time of his death, Mrs. Sweazey received burial benefits. She

was not approved for any other benefits, however, as the VA determined that

Mr. Sweazey’s death was not service related.

      Mrs. Sweazey, proceeding pro se, filed this action in October 2001. She

alleged negligence on the part of the VA for its medical treatment of her husband

which led to his death, and negligence on the part of the United States for

permitting her husband, then a minor, to purchase and use cigarettes while he was


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in the Marine Corps. Defendant construed the action as one arising under the

Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, and moved to

dismiss because Mrs. Sweazey had not exhausted her administrative remedies, the

claims were barred by the statute of limitations, and the second claim was barred

by Feres v. United States, 340 U.S. 135, 146 (1950). Defendant further noted that

proper service had not been effected.

      In reply, Mrs. Sweazey asserted that she had exhausted her administrative

remedies. Defendant conducted a search and informed the court that it had not

found any records showing that Mrs. Sweazey had filed any claims raising those

issues alleged in her present action. Mrs. Sweazey replied that she had not filed

this case as one falling under the FTCA, but rather as a breach of contract action.

She alleged the United States had entered into a contract with Mr. Sweazey when

he joined the Marine Corps. She contended that the United States promised to

provide proper medical care to Mr. Sweazey in that contract. Mrs. Sweazey

concluded the VA breached the contract when it provided allegedly improper

care during Mr. Sweazey’s final admission to the VA.

      The district court granted defendant’s motion and dismissed the action.

The court held that t he complaint did not support Mrs. Sweazey’s assertion that

she had filed the case as a breach of contract action. The court also held that she




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had failed to show she had exhausted her administrative remedies as required by

the FTCA and further that her case was untimely filed.

       “We review a dismissal for lack of subject-matter jurisdiction de novo,

accepting the district court’s findings of jurisdictional facts unless they are clearly

erroneous.” Montoya v. Chao , 296 F.3d 952, 954-55 (10th Cir. 2002).

       Mrs. Sweazey, apparently conceding that she did not exhaust her

administrative remedies as required under the FTCA, argues that the district court

erred in construing this action as one filed under the FTCA as she had filed it as a

breach of contract action. Mrs. Sweazey does not argue that the district court

erred in dismissing the case, if it were properly construed as one falling under the

FTCA. “To determine the nature of an asserted claim, we focus not on the label

the plaintiff uses, but on the conduct upon which [s]he premises h[er] claim as

supported by the record.”    Benavidez v. United States , 177 F.3d 927, 931 (10th

Cir. 1999).

       As the district court noted, Mrs. Sweazey has not alleged any claims that

would properly fall under a breach of contract action. She alleges traditional tort

claims of negligence and/or medical malpractice claims. Further, common-law

contract rules do not apply to military pay and benefits.      See, e.g. , Schism v.

United States , 316 F.3d 1259, 1268 (Fed. Cir. 2002),       cert. denied , 123 S. Ct. 2246




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(2003). Military benefits are determined by statute and regulations, not from a

contractual relationship with the government.    Id. at 1274-75.

       As framed in her complaint, Mrs. Sweazey’s claims can only fall under the

FTCA. See, e.g. , Brown v. United States , 151 F.3d 800, 806 (8th Cir. 1998)

(“veterans who have suffered    non-service-related injuries may sue under the

FTCA”); Quilico v. Kaplan , 749 F.2d 480, 481 (7th Cir. 1984) (Attorney General

will defend FTCA actions against medical personnel “for malpractice liability in

furnishing care or treatment while in the exercise of such persons duties in or for

the Department of Medicine and Surgery of the VA)” (quotation and citation

omitted)). Thus, the district court properly dismissed this action for failure to

exhaust administrative remedies,   see 28 U.S.C. § 2675(a), and for being untimely

filed, see id. , § 2401(b).

       The judgment of the district court is AFFIRMED.



                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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