                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             AUG 2 2004
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 RUTHERFORD ROGERS,

               Plaintiff - Appellant,

          v.                                            No. 03-1337
                                              (D. Ct. No. 02-RB-1491 (MJW))
 FEDERAL BUREAU OF PRISONS;                              (D. Colo.)
 UNITED STATES PAROLE
 COMMISSION,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, BRISCOE, and HARTZ, Circuit Judges.


      At the request of both parties, the appeal is submitted without oral

argument. See Fed. R. App. P. 34(a)(1); 10th Cir. R. 34.1(G). Plaintiff-Appellant

Rutherford Rogers brought several tort claims against Defendants-Appellants

(Defendants) after he was found ineligible for parole. He seeks to recover $4500

in costs spent on his parole hearing. On appeal, Mr. Rogers challenges the

District Court’s order granting the Defendants’ motion to dismiss under Federal


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
Rules of Civil Procedure 12(b)(1) and 12(b)(6) and its refusal to appoint counsel.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

                               I. BACKGROUND

      Although the complaint is somewhat unclear, Mr. Rogers apparently asserts

the following facts. In July 1999, he received a parole-application form, notifying

him of the next United States Parole Commission hearing. He submitted the

application and then paid a parole representative $4500 to represent him at the

November 1999 hearing. In January 2000, the Parole Commission issued a notice

of a parole action with a presumptive parole date. In March 2001, however, the

Bureau of Prisons issued another parole action, voiding the hearing and the

January 2000 notice of action because it found Mr. Rogers ineligible for parole.

      Mr. Rogers filed an administrative tort claim with the Federal Bureau of

Prisons, which issued a final denial of his tort action in February 2002. In August

2002, Mr. Rogers filed a pro se complaint in the Federal District Court for the

District of Colorado, alleging that the Parole Commission and the Federal Bureau

of Prisons violated his rights under the Eighth and Fourteenth Amendments to the

Federal Constitution by depriving him of property in the form of the fees paid to

his parole representative.

      The District Court referred the matter to a magistrate judge, who

recommended, in January 2003, that the District Court grant the Defendants’


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motion to dismiss for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1),

and for failure to state a claim, Fed. R. Civ. P. 12(b)(6). In May 2003, the

District Court approved and adopted the magistrate’s recommendation, granting

the Defendants’ motion to dismiss the complaint in its entirety. In its order, the

District Court stated that Mr. Rogers had not filed objections to the magistrate

judge’s recommendation when he had, in fact, filed them. Subsequently, Mr.

Rogers filed both a Fed. R. Civ. P. 60(b) motion for relief from the judgment and

a notice of appeal to this court.

      In an order dated October 21, 2003, we issued a limited remand so the

District Court could consider the Rule 60(b) motion. We further noted our

intention to remand the entire matter if the District Court decided to grant the

Rule 60(b) motion for the limited purpose of considering Mr. Rogers’s objections

to the magistrate judge’s recommendation.

      In February 2004, the District Court issued an order denying the motion and

clarifying that it had considered Mr. Rogers’s objections in conducting its

previous de novo review of the merits. On appeal, Mr. Rogers asserts that his

objections sufficiently allege jurisdiction and state a claim upon which relief can

be granted and appeals the District Court’s refusal to appoint him counsel.

                           II. STANDARD OF REVIEW

      The Defendants moved to dismiss Mr. Rogers’s complaint under Federal


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Rules of Civil Procedure 12(b)(1) and 12(b)(6). The magistrate judge’s

recommendation discusses both rules, so we presume the District Court relied on

both of them in granting the Defendants’ motion to dismiss.

       “Rule 12(b)(1) motions generally take one of two forms.”     Stuart v.

Colorado Interstate Gas Co. , 271 F.3d 1221, 1225 (10th Cir. 2001). “The moving

party may (1) facially attack the complaint’s allegations as to the existence of

subject matter jurisdiction, or (2) go beyond allegations contained in the

complaint by presenting evidence to challenge the factual basis upon which

subject matter jurisdiction rests.”   Maestas v. Lujan , 351 F.3d 1001, 1013 (10th

Cir. 2003). We review a district court’s Rule 12(b)(1) dismissal for lack of

subject matter jurisdiction de novo and “review findings of jurisdictional facts, if

any, for clear error.”   Id. We also review a district court’s dismissal under Rule

12(b)(6) de novo.    Colorado Envtl. Coalition v. Wenker   , 353 F.3d 1221, 1227

(10th Cir. 2004). Finally, in deciding whether to appoint counsel for an indigent

litigant under 28 U.S.C. § 1915(e)(1), a district court has broad discretion. We

will not reverse its decision unless the denial “would result in fundamental

unfairness impinging on due process rights.”     Long v. Shillinger , 927 F.2d 525,

527 (10th Cir. 1991) (quotation omitted).

       Because Mr. Rogers appears pro se, in determining whether his pleadings

establish jurisdiction and state a recognized legal claim, we construe his pleadings


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liberally and hold them “to a less stringent standard than formal pleadings drafted

by lawyers.” Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). “[T]his rule

means that if a court can reasonably read the pleadings to state a valid claim on

which the plaintiff could prevail, it should do so despite the plaintiff’s failure to

cite proper legal authority, his confusion of various legal theories, his poor syntax

and sentence construction, or his unfamiliarity with pleading requirements.”        Id.

                                  III. DISCUSSION

A.    Underlying Treatment of Mr. Rogers’s Objections

      We need not discuss the magistrate judge’s reasoning or conclusions in

detail because Mr. Rogers does not challenge the District Court’s decision to

dismiss the case on any of the grounds discussed in the magistrate judge’s

recommendation. Instead, he argues the District Court failed to construe his

pleadings liberally. He alleges that, under a liberal reading of his pleadings, his

factual allegations support claims for relief under the Privacy Act, 5 U.S.C. §

552a, and the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80.

      Mr. Rogers developed both of these legal theories initially in his objections

to the magistrate judge’s recommendation. Although theories raised for the first

time in these objections are deemed waived,      United States v. Garfinkle    , 261 F.3d

1030, 1031 (10th Cir. 2001), the District Court on remand said it considered Mr.

Rogers’s objections in reviewing the recommendation to grant the Defendants’


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motion to dismiss. We need not decide whether the District Court’s consideration

of Mr. Rogers’s claims operates as an exception to our waiver rule because, even

if it does, his claims fail on the merits.

B.     Privacy Act

       Mr. Rogers argues that the Defendants violated provisions in the Privacy

Act that require federal agencies to maintain accurate individual records.     See 5

U.S.C. §§ 552a(e)(5), (g)(1)(C), (g)(4). Under the Act, an individual may sue a

federal agency for damages “if the agency willfully or intentionally violates” the

provision granting a private right of action for failure to maintain individual

records in the appropriate manner.   1
                                         Id. §§ 552a(g)(1)(C), (g)(4). In order to

establish a claim for damages under these provisions, Mr. Rogers must show:

       (1) he has been aggrieved by an adverse determination; (2) the
       agency failed to maintain his records with the degree of accuracy
       necessary to assure fairness in the determination; (3) the agency’s
       reliance on the inaccurate records was the proximate cause of the
       adverse determination; and (4) the agency acted intentionally or
       willfully in failing to maintain accurate records. Gowan v. United
       States Dep’t of Air Force , 148 F.3d 1182, 1192 (10th Cir. 1998)
       (alterations and quotations omitted).


       1
         Section 552a(g)(1)(C) creates a private right of action and states, in part:
“Whenever any agency . . . fails to maintain any record concerning any individual
with such accuracy, relevance, timeliness, and completeness as is necessary to
assure fairness in any determination relating to the qualifications, character,
rights, or opportunities of, or benefits to the individual that may be made on the
basis of such record, and consequently a determination is made which is adverse
to the individual . . . the individual may bring a civil action against the agency . . .
.”

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      In asserting a Privacy Act claim, Mr. Rogers alleges that the Defendants

willfully or intentionally maintained inaccurate records of his sentence. Because

of this failure, he was placed on the Parole Commission’s hearing docket and

paid a parole representative $4500 even though his sentence was ineligible for

parole.

      Even under the most liberal reading of Mr. Rogers’s factual allegations, we

conclude that he has failed to state a claim under the Privacy Act. Mr. Rogers has

clearly not alleged any “adverse determination” caused by the Defendants’ alleged

failure to maintain accurate records. The decision issued by the Bureau of

Prisons, concluding he is ineligible for parole, may be an “adverse

determination,” see Deters v. United States Parole Comm’n   , 85 F.3d 655, 659

(D.C. Cir. 1996), but inaccurate record keeping did not cause this

determination—his legal ineligibility did. Under the most liberal reading of his

pleadings, Mr. Rogers has therefore failed to state a Privacy Act claim.

C.    Federal Tort Claims Act

      Based on the same facts, Mr. Rogers also attempts to sue the Defendants

for negligence under the FTCA. But, as the magistrate judge’s recommendation

recognizes, Mr. Rogers’s complaint suffers from two jurisdictional problems.

First, the complaint contains only constitutional claims, which are not cognizable



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under the Act’s jurisdictional provision, 28 U.S.C. § 1346(b).     2
                                                                        Federal Deposit

Ins. Corp. v. Meyer , 510 U.S. 471, 477-78 (1994) (holding that a “constitutional

tort claim is not ‘cognizable’ under § 1346(b) because it is not actionable under §

1346(b)”). Second, Mr. Rogers sued federal agencies, rather than the United

States itself, which is the only proper defendant under § 1346(b)(1).        Oxendine v.

Kaplan , 241 F.3d 1272, 1275 n.4 (10th Cir. 2001) (“The United States is the only

proper defendant in an FTCA action.”).

       In his objections to the magistrate judge’s recommendation, Mr. Rogers

attempts to characterize his FTCA claim as one for negligence rather than

constitutional violations. But even if we read his complaint to allege facts in

support of a negligence action, Mr. Rogers fails to state an actionable claim. His

apparent theory of negligence, although not fully developed, comes closest to

negligent misrepresentation. He seems to suggest that the Defendants, in

providing a parole application and hearing, breached a duty of care to provide

accurate information regarding his eligibility for parole. And, in hiring a parole

representative, he relied upon this false information to his financial detriment.

See Keller v. A.O. Smith Harvestore Prods., Inc.     , 819 P.2d 69, 71 & n.2 (Colo.



       2
        Section 1346(b) limits the federal government’s liability to torts
committed by its employees “under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred.”

                                           -8-
1991) (providing the elements of negligent misrepresentation). On its face,

however, the FTCA clearly bars a claim arising from misrepresentation. 28

U.S.C. § 2680(h). Thus, even under the most liberal reading of Mr. Rogers’s

pleadings, he has failed to state a claim upon which relief can be granted.

D.     Appointment of Counsel

       Lastly, Mr. Rogers asserts that the District Court erred in denying his

motions for appointment of counsel. In exercising its discretion to appoint

counsel, “the district court should consider a variety of factors, including the

merits of the litigant’s claims, the nature of the factual issues raised in the claims,

the litigant’s ability to present his claims, and the complexity of the legal issues

raised by the claims.”   Long , 927 F.2d at 527 . After independently reviewing the

record on appeal, we conclude the District Court did not abuse its discretion in

denying Mr. Rogers’s motions for appointment of counsel.

                                 IV. CONCLUSION

       For these reasons, we AFFIRM the District Court’s dismissal of Mr.

Rogers’s complaint and its denial of his motions for appointment of counsel.

                                        ENTERED FOR THE COURT,



                                        Deanell Reece Tacha
                                        Chief Circuit Judge




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