                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                                 TENTH CIRCUIT                                June 6, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
TU MY TONG,

      Plaintiff - Appellant,

v.                                                          No. 15-2144
                                               (D.C. No. 2:15-CV-00191-MCA-SMV)
THE STATE OF NEW MEXICO;                                     (D.N.M.)
THE GOVERNOR OF NEW MEXICO
SUSANA MARTINEZ; IDA
D’ANTONIO HAGEN, an individual;
LOUIS MARTINEZ, an individual;
JOHN DOES 1-100, inclusive;
UNITED STATES OF AMERICA,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, O’BRIEN, and GORSUCH, Circuit Judges.
                   _________________________________

      Tu My Tong filed this pro se action in New Mexico state court after a jury

acquitted her on federal human-trafficking charges. She alleged that various state

and federal officials committed intentional torts and violated her constitutional rights

in investigating and prosecuting her. Defendants Ida Hagen and Louis Martinez, an

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
FBI agent and federal prosecutor, respectively, removed the case to federal court.

Once there, the United States substituted itself as a party in their place and filed a

motion to dismiss. In response, Ms. Tong moved to remand the case to state court

and for leave to file an amended complaint. Following this flurry of motions, the

district court denied Ms. Tong’s requests, dismissed her federal claims, and

remanded her remaining claims to state court.

      Though Ms. Tong’s contentions on appeal are difficult to discern, her brief

(liberally construed) appears to focus on three aspects of the district court’s ruling.

First, she complains that the district court lacked jurisdiction over her case and so

should have remanded it to state court without dismissing her federal claims. But

Ms. Tong’s claims against the federal officers arose from the exercise of their official

duties, and so those defendants were entitled to remove the case to federal court. See

28 U.S.C. § 1442(a)(1); Akin v. Ashland Chem. Co., 156 F.3d 1030, 1034-35 (10th

Cir. 1998). Moreover, the U.S. Attorney for the District of New Mexico properly

certified that those officers were acting within the scope of their employment when

investigating and prosecuting Ms. Tong. So it is the United States was permitted to

substitute itself as the party defendant in their place — at least with respect to Ms.

Tong’s tort claims. See 28 U.S.C. § 2679(d); 28 C.F.R. § 15.4; Wilson v. United

States, 29 F. App’x 495, 496-97 (10th Cir. 2002).

      Ms. Tong next objects to the district court’s dismissal of her federal claims,

but again we see no error. To the extent Ms. Tong alleges torts within the scope of

the Federal Tort Claims Act, she does not dispute that she failed to comply with the

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Act’s exhaustion requirement. See 28 U.S.C. § 2675(a); Bradley v. United States ex

rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991). Neither does she respond

to the district court’s thoughtful analysis dismissing her constitutional claims. For

example, though Ms. Tong seeks to revive her malicious prosecution claim, she does

not address the district court’s conclusion that Special Agent Hagen had probable

cause to arrest and prosecute her. See Stonecipher v. Valles, 759 F.3d 1134, 1146

(10th Cir. 2014) (noting malicious prosecution claim requires proof that “no probable

cause supported the original arrest, continued confinement, or prosecution”). As for

her selective prosecution claim, Ms. Tong once again points out that she is

Vietnamese while the federal officials who prosecuted her, the government’s

witnesses, and her alleged victims were all Hispanic. But as the district court

explained, this coincidence is far from sufficient to permit a reasonable inference that

she was prosecuted on account of her race. See United States v. Armstrong, 517 U.S.

456, 465 (1996) (requiring plaintiff to “show that similarly situated individuals of a

different race were not prosecuted”).

      Lastly, Ms. Tong takes issue with the district court’s last act, which was to

remand her state law claims to state court. At this point, though, the district court

had (and we think properly) dismissed all of her federal claims. Having done this

much, it was within the district court’s discretion to decline to exercise supplemental

jurisdiction over any state law claims that remained. See 28 U.S.C. § 1367(c)(3);

Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998)



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(“When all federal claims have been dismissed, the court may, and usually should,

decline to exercise jurisdiction over any remaining state claims.”).

      We affirm the district court’s thorough and well-reasoned judgment. We also

deny Ms. Tong’s motion to amend her opening brief and her motion to reconsider

this court’s denial of her request to augment the record.


                                            ENTERED FOR THE COURT


                                            Neil M. Gorsuch
                                            Circuit Judge




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