                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 5, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                          FOR THE TENTH CIRCUIT


    DUSTIN J. MERRYFIELD,

              Plaintiff-Appellant,

    v.                                                  No. 10-3318
                                            (D.C. No. 5:09-CV-03218-CM-DJW)
    DISABILITY RIGHTS CENTER OF                          (D. Kan.)
    KANSAS; ROCKY NICHOLS,
    Director; DEPARTMENT OF
    HEALTH AND HUMAN SERVICES;
    KATHLEEN SEBELIUS, Secretary;
    SUBSTANCE ABUSE AND
    MENTAL HEALTH SERVICES
    ADMINISTRATION, a/k/a SAMSHA;
    ERIC BRODERICK, Director;
    OFFICE FOR CIVIL RIGHTS,
    REGION VII; FRANK CAMPBELL,
    Regional Director,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before HOLMES and ANDERSON, Circuit Judges, BRORBY, Senior Circuit
Judge.



*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Plaintiff-appellant Dustin J. Merryfield is confined at Larned State Hospital

in Larned, Kansas, under the Kansas Sexually Violent Predator Act (SVPA),

Kan. Stat. Ann. § 52-29a01, et seq., as a patient in the Kansas Sexual Predator

Treatment Program. 1 He brought a pro se civil rights class action in the United

States District Court for the District of Kansas against the Disability Rights

Center of Kansas (DRC) and the United States Department of Health and Human

Services (HHS). The DRC is a private, non-profit corporation organized in the

state of Kansas that receives and uses federal funds to, among other things,

advocate for the rights of disabled Kansans.

      Mr. Merryfield sought to have the DRC represent him in bringing

complaints against Larned State Hospital. The DRC declined his requests on a


1
             The SVPA, K.S.A. 59–29a01 et seq., was enacted for the
      “potentially long-term control, care and treatment of sexually violent
      predators,” as well as for the protection of the public. K.S.A.
      59–29a01; see K.S.A. 2008 Supp. 59–29a07(a). Once it has been
      determined that a person is a sexually violent predator, he or she
      shall be committed to the custody of [the Kansas Department of
      Social and Rehabilitation Services] for control, care, and treatment
      “until such time as the person’s mental abnormality or personality
      disorder has so changed that the person is safe to be at large.”
      K.S.A. 2008 Supp. 59–29a07(a). Because the SVPA narrows the
      class of persons eligible for confinement to those who find it
      difficult, if not impossible, to control their dangerousness, the SVPA
      was found to be facially constitutional by the United States Supreme
      Court in [Kansas v. Hendricks, 521 U.S. 346, 356-609 (1997)].

Johnson v. Kansas, 215 P.3d 575, 582 (Kan. 2009).

                                         -2-
number of grounds. Mr. Merryfield’s federal suit asserts that the DRC’s refusal

of representation violated his rights, and the rights of others similarly situated, in

a number of ways. He also asserted that HHS failed to ensure that the DRC

properly used the federal funds it received. Further factual details are not

necessary as all of Mr. Merryfield’s claims rested on his assertion that the district

court had jurisdiction over his complaint against the DRC under the

Administrative Procedures Act (APA), because the DRC is a federal agency. His

sole point on appeal is that the district court erred in determining that it did not

have jurisdiction because the DRC was not a federal agency.

      For the purposes of the APA, the term “‘agency’ means each authority of

the Government of the United States, whether or not it is within or subject to

review by another agency,” subject to a few exceptions not applicable here.

See 5 U.S.C. § 701(b). The DRC receives federal funds under the Protection and

Advocacy for Individuals with Mental Illness Act (PAIMI). Mr. Merryfield’s

assertion is that this receipt of federal funds makes the DRC a federal agency.

We disagree.

      The Supreme Court has recently explained that the Developmental

Disabilities Assistance and Bill of Rights Act of 2000 (DD Act) offered States

federal money to, among other things, improve medical care for persons with

developmental disabilities. See Va. Office for Prot. & Advocacy v. Stewart,

131 S. Ct. 1632, 1635-36 (2011). It required a state, as a condition of receiving

                                          -3-
that money, to “establish a protection and advocacy (P & A) system.” Id. at 1636.

The court noted that the PAIMI Act increased that funding and “extends the

mission of P & A systems to include the mentally ill.” Id. Under the DD Act and

the PAIMI Act, the P & A systems are required to have certain powers. 2 Id.

      Further “[a] participating State is free to appoint either a state agency or a

private nonprofit entity as its P & A system.” Id. One of the purposes of the

PAIMI Act is “to assist States to establish and operate a protection and advocacy

system for individuals with mental illness.” 42 U.S.C. § 10801. An “eligible

system” is a “system established in a State to protect and advocate the rights of

persons with developmental disabilities under subtitle C of the [DD Act].”

42 U.S.C. § 10802(2). The “eligible system” then receives allotments from the

federal government to establish and administer systems to assist the mentally ill.


2
      The system “shall . . . have the authority to investigate incidents of
      abuse and neglect . . . if the incidents are reported to the system or if
      there is probable cause to believe that the incidents occurred.”
      [42 U.S.C.] § 15043(a)(2)(B); § 10805(a)(1)(A). Subject to certain
      statutory requirements, it must be given access to “all records” of
      individuals who may have been abused, see § 15043(a)(2)(I)(iii)(II);
      § 10805(a)(4)(B)(iii), as well as “other records that are relevant to
      conducting an investigation,” § 15043(a)(2)(J)(i). The Acts also
      require that a P & A system have authority to “pursue legal,
      administrative, and other appropriate remedies or approaches to
      ensure the protection of” its charges. § 15043(a)(2)(A)(i); see
      § 10805(a)(1)(B). And in addition to pressing its own rights, a
      P & A system may “pursue administrative, legal, and other remedies
      on behalf of” those it protects. § 10805(a)(1)(C); see § 15044(b).

Va. Office for Prot. & Advocacy, 131 S. Ct. at 1636.

                                         -4-
42 U.S.C. § 10803. The “eligible system may use its allotment . . . to enter into

contracts with State agencies and nonprofit organizations which operate

throughout the State.” 42 U.S.C. § 10804(1).

      Thus, it is clear that the purpose of the federal statute is not to set up

federal agencies in each of the states, but to assist the States in setting up their

own systems. The systems in those states may then provide the services

anticipated by the PAIMI Act through either state agencies or nonprofit

organizations. If Kansas had chosen to provide these services through a state

agency, that agency would not be considered a federal agency. See, e.g., Hunter

v. Underwood, 362 F.3d 468, 477 (8th Cir. 2004) (“The APA does not grant

federal courts jurisdiction to review actions of state or municipal agencies.”); Sw.

Williamson Cnty. Cmty. Ass’n v. Slater, 173 F.3d 1033, 1035 (6th Cir. 1999) (“By

its own terms, the APA does not apply to state agencies.”). Here, Kansas has

designated not one of its own agencies as its P & A system, but the DRC, a

nonprofit entity. Thus, the removal from the federal government is even greater.

Consequently, we affirm the district court’s holding that the DRC is not a federal

agency. 3


3
       We note that Mr. Merryfield briefly argues that the terms “federal
instrumentality” and “federal agency” are interchangeable and that, therefore, the
DRC is a federal agency. He does not elaborate on this assertion in his brief to
this court, but we note that he argued to the district court that “[t]he [DRC] in
2009 showed they were a federal instrumentality in a case before the United
                                                                         (continued...)

                                           -5-
      The district court’s dismissal is AFFIRMED.


                                                   Entered for the Court



                                                   Jerome A. Holmes
                                                   Circuit Judge




3
 (...continued)
States District Court, for the District of Kansas, when they filed an action under
the Administrative Procedures Act, against the United States Department of
Health and Human Services.” Aplt. App. at 70. Mr. Merryfield provides no legal
authority to support the novel proposition that simply filing a lawsuit under the
APA makes a plaintiff a federal instrumentality or agency.

                                        -6-
