                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


JAY MCNABB; MCJAST                      
INCORPORATED, d/b/a American
Carolina Stamping; STEVE MCNABB;
JANET SUE MCNABB,
               Plaintiffs-Appellants,
                 v.
STATE OF NORTH CAROLINA; NORTH
CAROLINA DEPARTMENT OF
ENVIRONMENT, HEALTH AND NATURAL
RESOURCES, Division of Waste
Management; SPRING ALLEN;                        No. 01-1951
DOUGLAS HOLYFIELD; JANET RENO,
United States Attorney General;
UNITED STATES OF AMERICA; THE
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; TYLER AMON;
IVAN VIKING; ARTHUR JEROME
POTEET; DAMON SILVAS; LOREEN
SILVAS; JOHN DOE-1; JOHN DOE-2;
JOHN DOE-3,
              Defendants-Appellees.
                                        
            Appeal from the United States District Court
      for the Western District of North Carolina, at Asheville.
                Lacy H. Thornburg, District Judge.
                   (CA-00-203-1, CA-00-205-1)

                      Argued: February 27, 2002

                       Decided: April 25, 2002

    Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.
2               MCNABB v. STATE    OF   NORTH CAROLINA
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


                             COUNSEL

ARGUED: John Joseph Korzen, ANDERSON, KORZEN & ASSO-
CIATES, P.C., Kernersville, North Carolina, for Appellants. Paul
Bradford Taylor, Assistant United States Attorney, Asheville, North
Carolina, for Federal Appellees; David Roy Blackwell, Special Dep-
uty Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for State Appellees. ON BRIEF:
Michael K. Pratt, RAMSEY, HILL, SMART, RAMSEY & PRATT,
P.A., Brevard, North Carolina, for Appellants. Robert J. Conrad, Jr.,
United States Attorney, Asheville, North Carolina, for Federal Appel-
lees; Roy Cooper, Attorney General, Lauren M. Clemmons, Assistant
Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for State Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   The plaintiffs in this case are Steve and Janet McNabb; their son,
Jay McNabb; and McJast Inc. (McJast), a corporation owned by Janet
McNabb. McJast, which employs several members of the McNabb
family (including the three individual plaintiffs), makes metal parts at
its facility in Transylvania County, North Carolina. In 1998 officials
of the North Carolina Department of Environment and Natural
Resources (NCDENR) attempted to investigate anonymous com-
plaints of unlawful hazardous waste disposal at the McJast facility.
The matter was eventually referred to the U.S. Environmental Protec-
tion Agency’s Criminal Investigation Division (EPA-CID). On April
                MCNABB v. STATE     OF   NORTH CAROLINA                3
15, 1999, a number of federal agents, armed with a search warrant,
raided the McJast premises. The raid prompted the plaintiffs to sue
the State of North Carolina, NCDENR, two NCDENR employees, the
United States, the EPA, the U.S. Attorney General, two agents of the
EPA-CID, and several private parties, asserting claims under 42
U.S.C. §§ 1983 and 1985, the Federal Tort Claims Act (FTCA),
Bivens, the Fourth Amendment, the Sixth Amendment, the Fourteenth
Amendment, and the North Carolina Constitution.

   The defendants filed motions to dismiss and for summary judg-
ment, and the matter was referred to the magistrate judge. In a thor-
ough Amended Memorandum and Recommendation, the magistrate
judge recommended that all claims be dismissed. See McNabb v.
North Carolina, No. 1:00cv203-T (W.D.N.C. Apr. 11, 2001). The dis-
trict court generally adopted the magistrate judge’s recommendations
and concluded that all claims should be disposed of by dismissal or,
in the alternative, by the award of summary judgment to the defen-
dants. With one exception noted below, we affirm on the reasoning
of the district court. See McNabb v. North Carolina, No. 1:00CV203
(W.D.N.C. June 26, 2001).

   The magistrate judge recommended that the plaintiffs’ FTCA claim
be dismissed for lack of subject matter jurisdiction because the plain-
tiffs did not first present this claim to the appropriate federal agency.
See 28 U.S.C. § 2675(a). The district court’s ultimate dismissal of the
FTCA claim has the effect of a dismissal with prejudice. Because the
decision to dismiss the FTCA claim was not a decision on the merits,
the claim should have been dismissed without prejudice. Accordingly,
the judgment dismissing the FTCA claim is vacated so that it can be
reentered on remand as a dismissal without prejudice.

                                    AFFIRMED IN PART, VACATED
                                       IN PART, AND REMANDED
