                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                      UNITED STATES COURT OF APPEALS                  July 9, 2008
                            FOR THE TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                      Clerk of Court


    MELODY RAMSEY,

                Plaintiff-Appellant,

    v.                                                   No. 07-1465
                                             (D.C. No. 1:04-cv-02140-LTB-BNB)
    ANTHONY J. PRINCIPI,                                  (D. Colo.)
    Secretary, Veteran Affairs,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.



         Plaintiff Melody Ramsey, appearing pro se, appeals from an order of the

district court dismissing all but one of the claims in her complaint and a second

order granting summary judgment to defendant on the remaining claim. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Mrs. Ramsey is the widow of a World War II veteran buried at Fort Logan

National Cemetery in Denver, Colorado. She started volunteering at the cemetery

shortly after her husband was buried in March 2002, and sued defendant Principi

in his official capacity over events that transpired there.

      Defendant moved to dismiss. The magistrate judge thoroughly reviewed

Mrs. Ramsey’s complaint and, in a recommendation filed on August 23, 2005,

recommended that all of her claims be dismissed, except for a claim for violation

of the National Environmental Policy Act (NEPA) that defendant had not

addressed.

      The magistrate judge recommended that Mrs. Ramsey’s constitutional

claims be dismissed because the sovereign immunity of the Department of

Veterans Affairs was not waived under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), for constitutional claims

brought against defendant in his official capacity. FDIC v. Meyer, 510 U.S. 471,

484-85 (1994). As a result, the magistrate judge concluded that the court lacked

subject matter jurisdiction.

      The magistrate judge recommended that Mrs. Ramsey’s discrimination

claims also be dismissed. The magistrate judge reasoned that Mrs. Ramsey

repeatedly asserted in her complaint that she was a volunteer at the cemetery, and

she therefore lacked standing to sue under Title VII of the Civil Rights Act of

1964 because she was not an employee or applicant for employment. See

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42 U.S.C. §§ 2000e(f), 2000e-16; Jacob-Mua v. Veneman, 289 F.3d 517, 521

(8th Cir. 2002). The magistrate judge further reasoned that the United States is

not an employer under the Americans with Disabilities Act (ADA), 42 U.S.C.

§ 12111(5)(B)(i), so Mrs. Ramsey could not bring discrimination claims against a

federal agency under the ADA. Further, because she was not an employee, she

could not bring discrimination claims against the agency under the Rehabilitation

Act of 1973. See 29 U.S.C. § 794(d); 42 U.S.C. § 12111(4).

        Finally, the magistrate judge recommended that Mrs. Ramsey’s tort claims

be dismissed because she failed to exhaust her administrative remedies under the

Federal Tort Claims Act, 28 U.S.C. § 2675(a). As a result, her claims were

barred by sovereign immunity, and the court lacked subject matter jurisdiction.

Nero v. Cherokee Nation, 892 F.2d 1457, 1463 (10th Cir. 1989).

        In an order filed on December 15, 2005, the district court adopted the

magistrate judge’s recommendation. The district court denied Mrs. Ramsey’s

subsequent motion to alter or amend the judgment in an order filed on January 26,

2006.

        Defendant then moved for summary judgment on Mrs. Ramsey’s NEPA

claim. The magistrate judge, in a recommendation filed on July 13, 2007,

recommended that summary judgment be granted to defendant because NEPA

does not provide a private right of action. See Utah Env’l Cong. v. Russell,

518 F.3d 817, 823 (10th Cir. 2008). In an order filed on August 23, 2007, the

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district court adopted the magistrate judge’s recommendation and granted

summary judgment to defendant. The district court entered judgment in favor of

defendant on August 24, 2007.

      We review the dismissal of a complaint de novo. Wyoming v. United

States, 279 F.3d 1214, 1222 (10th Cir. 2002). We also review a grant of summary

judgment de novo. Williams v. Berney, 519 F.3d 1216, 1219 (10th Cir. 2008).

Because Mrs. Ramsey is pro se, we review her pleadings and filings liberally.

See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).

      We have reviewed the materials in light of the governing law. We are

unpersuaded by Mrs. Ramsey’s arguments on appeal, and we affirm for

substantially the same reasons as those stated by the magistrate judge in his two

recommendations and adopted by the district court.

      AFFIRMED.


                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




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