                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  July 26, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                           FOR THE TENTH CIRCUIT


    JOSEPH T. MECCA,

               Plaintiff-Appellant,

    v.                                                  No. 09-1569
                                           (D.C. No. 1:08-CV-02813-REB-CBS)
    UNITED STATES OF AMERICA;                          (D. Colorado)
    MICHAEL J. STARKEY; JOHN A.
    JOHNSON; JAMES TERRIO; JACK
    MARKUSFELD; JOHN CHO,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and O’BRIEN, Circuit Judges.



         Joseph T. Mecca, a former radiologist at Evans Army Community Hospital

(Evans Army) in Fort Carson, Colorado, appeals the dismissal of his suit brought

under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671-2680,




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971). Dr. Mecca initiated this action after he resigned from Evans

Army, but the district court dismissed the FTCA claims for lack of jurisdiction

and the Bivens claim for failure to state a claim for relief. On appeal, Dr. Mecca

contends the district court dismissed his suit by applying an overly restrictive

pleading standard. We conclude the district court correctly evaluated Dr. Mecca’s

allegations, both jurisdictional and factual, and accordingly, we affirm. We

remand, however, to modify dismissal of the FTCA claims to be without

prejudice.

                                          I

      As alleged in the amended complaint, Dr. Mecca worked under contract as

a civilian radiologist at Evans Army. A year after obtaining staff privileges,

Dr. Mecca misdiagnosed a patient. He was advised by the Chief of Radiology,

Major Michael Starkey, that he could resign without adverse consequences or face

investigation, suspension, and referral to the National Practitioners Data Bank and

state licensing authorities. Dr. Mecca opted to resign, but Starkey went ahead

with proceedings to hold his privileges in abeyance pending the outcome of an

investigation and peer review. Dr. Mecca learned of the abeyance from Colonel

John Johnson, the Deputy Commander for Clinical Services, and although he

protested the measure based on the assurances given by Starkey, his complaints

went unanswered. Receiving no response, Dr. Mecca assumed the matter had

                                         -2-
been put to rest until he was notified by Colonel Jack Markusfeld that his

privileges had been suspended because he resigned during the investigation.

      Once the investigation was concluded, Colonel James Terrio notified

Dr. Mecca that the matter had been referred to a peer review committee.

Thereafter, Colonel John Cho, Commander of the Army Medical Department,

confirmed that Dr. Mecca’s suspension was precipitated by his resignation during

the abeyance proceedings. Although Colonel Cho informed Dr. Mecca that he

had the right to a hearing before a credentials committee, he never received one.

Eventually, the Army referred the matter to the Surgeon General of the United

States, but the Surgeon General’s office found insufficient evidence to support the

suspension. By that time, though, Dr. Mecca was unable to find a new job, and

he thus sought redress through the courts.

      In his amended complaint, Dr. Mecca pleaded eight claims under the FTCA

and a ninth claim under Bivens. The first three FTCA claims alleged negligence

per se for violations of Army Regulation (AR) 40-68, specifically, Chapter

10-6(a)(4) for the government’s wrongful suspension of his privileges following

his resignation; Chapter 10-6(f) for the government’s failure to notify him of the

peer review process and right to participate in that process; and Chapter 10-7(a)

for the government’s failure to inform him of the “deficiencies in his diagnosis

. . . and his right [to] request and be present at a formal hearing,” Aplt. App. at

35. Three additional FTCA claims alleged general negligence on similar grounds.

                                          -3-
The seventh FTCA claim charged a civil conspiracy to violate AR 40-68, and the

last FTCA claim, styled “Interference with Prospective Business Advantage,”

accused the government of preventing Dr. Mecca from forming employment

contracts with other hospitals. As for the individual defendants, Dr. Mecca

charged under Bivens that he was deprived of protected liberty and property

interests without due process of law.

      On defendants’ motions, the district court dismissed the case. The court

ruled it lacked subject matter jurisdiction over the first seven claims because the

FTCA imposes liability in accordance with state law, but the amended complaint

cited no source of substantive state liability. The court also noted the civil

conspiracy claim failed to state a claim absent any facts “suggesting a meeting of

the minds between defendants as to the object of the conspiracy.” Id. at 239.

Additionally, the court determined the prospective business advantage claim was

excepted from the FTCA because it sought to vindicate contract rights, while the

Bivens claim was deficient under Fed. R. Civ. P. 12(b)(6) because it failed to

allege a constitutionally recognized property or liberty interest.

                                          II

      We review de novo dismissals for lack of subject matter jurisdiction under

Fed. R. Civ. P. 12(b)(1). Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227

(10th Cir. 2004). We likewise review de novo dismissals under Fed. R. Civ. P.

12(b)(6). Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009),

                                          -4-
cert. denied, 130 S. Ct. 1142 (2010). Under both subsections of Rule 12(b), all

well-pleaded allegations are accepted as true and viewed in the light most

favorable to the non-moving party. Id. at 1097-98.

A. FTCA Claims

      1. Claims 1-7

      We begin with the FTCA claims alleging negligence per se, negligence, and

civil conspiracy. It is clear that no action may lie against the United States unless

authorized by Congress. Miller v. United States, 463 F.3d 1122, 1123 (10th Cir.

2006). Congress has, in the FTCA, granted a limited waiver of sovereign

immunity for claims against the government

      for injury or loss of property . . . caused by the negligent or wrongful
      act or omission of any employee of the Government while acting
      within the scope of his office or employment, 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.

28 U.S.C. § 1346(b)(1) (emphasis added). The phrase “law of the place” refers to

the law of the State where the act or omission occurred. Fed. Deposit Ins. Corp.

v. Meyer, 510 U.S. 471, 478 (1994); Union Pac. R.R. Co. v. U.S. ex rel. U.S.

Army Corp. of Eng’rs, 591 F.3d 1311, 1315 (10th Cir. 2010). Thus, we consult

state law to determine substantive liability under the FTCA. Miller, 463 F.3d

at 1123.




                                         -5-
      Dr. Mecca, however, claimed only violations of AR 40-68, which, as a

federal regulation, cannot impose liability under the FTCA. See Klepper v. City

of Milford, 825 F.2d 1440, 1448 (10th Cir. 1987) (“[W]here a negligence claim is

based on a violation of a federal statute or regulation, no claim will lie under the

FTCA in the absence of some other duty under the applicable state law.”);

see also United States v. Agronics Inc., 164 F.3d 1343, 1347 (10th Cir. 1999)

(recognizing there can be no recovery for alleged violations of federal statutory or

regulatory duties absent a “specific basis for concluding that similar conduct by

private persons . . . would be actionable under state law” (quotation omitted)).

Dr. Mecca’s reliance on a federal regulation, without any analogous state law

duty, failed to bring the first seven claims within the scope of the FTCA’s waiver

of sovereign immunity and thus failed to invoke the court’s jurisdiction. See

Ayala v. United States, 49 F.3d 607, 610 (10th Cir. 1995) (recognizing absence of

federal jurisdiction unless state law recognizes a comparable private tort).

      Dr. Mecca disputes this result and cites the Colorado Professional Review

Act (CPRA), Colo. Rev. Stat. § 12-36.5-101 to -106, as an analogous source of

state liability for purposes of the FTCA. The problem, however, is he never

mentioned this or any other state law in his amended complaint. Instead, he

pursued purely federal regulatory violations under AR 40-68, even after the

government highlighted the deficiency in his original complaint. Dr. Mecca

imparts knowledge of “Colorado law,” presumably the CPRA, to the district court

                                          -6-
because he cited that statute in his response to the government’s motion to

dismiss. Aplt. Br. at 16 n.2. But the claim should have been made in the

amended complaint. See Swoboda v. Dubach, 992 F.2d 286, 290-91 (10th Cir.

1993) (restricting analysis of the sufficiency of claims to the allegations in the

complaint). In any event, the argument is unavailing, as the CPRA does not

create a private cause of action for the claims Dr. Mecca presents here. See

N. Colo. Med. Ctr., Inc. v. Nicholas, 27 P.3d 828, 840-41 (Colo. 2001) (“[T]he

CPRA is designed to protect medical patients from unprofessional conduct by

persons licensed to practice medicine.” (emphasis added, quotation omitted)).

      2. Civil Conspiracy

      Apart from the absence of any substantive liability under the FTCA,

Dr. Mecca’s civil conspiracy claim also suffers from another pleading deficiency.

Dr. Mecca was obliged to plead “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In

Colorado, a claim of civil conspiracy requires a plaintiff to show:

      (1) an object to be accomplished; (2) an agreement by two or more
      persons on a course of action to accomplish that object; (3) in
      furtherance of that course of action, one or more unlawful acts which
      were performed to accomplish a lawful or unlawful goal, or one or
      more lawful acts which were performed to accomplish an unlawful
      goal; and (4) damages to the plaintiff as a proximate result.

Magin v. DVCO Fuel Sys., Inc., 981 P.2d 673, 674-75 (Colo. App. 1999). The

amended complaint, however, alleges nothing to plausibly suggest defendants


                                          -7-
agreed on an object of the putative conspiracy. Instead, it generally avers that

defendants “agreed, by words or conduct, to accomplish an unlawful goal or

accomplish a goal through unlawful means.” Aplt. App. at 38. But this is a mere

“formulaic recitation,” Twombly, 550 U.S. at 555, of Colorado’s minimum

pleading standard for civil conspiracy claims, see Scott v. Hern, 216 F.3d 897,

918 (10th Cir. 2000) (“[Plaintiff] must at the very least allege ‘a course of

conduct and other circumstantial evidence providing some indicia of agreement in

an unlawful means or end.’” (quoting Schneider v. Midtown Motor Co., 854 P.2d

1322, 1327 (Colo. App. 1992) (ellipsis and brackets omitted))). Even

Dr. Mecca’s strongest allegation—that “Starkey, Johnson, and/or Markusfeld”

caused adverse action to be taken against him “in furtherance of the goal of

revoking [his] privileges”—fails to suggest a meeting of the minds. Aplt. App. at

28. At most, this might suggest the suspension was unlawful, but we cannot infer

from defendants’ independent acts an agreement to realize that goal. See Nelson

v. Elway, 908 P.2d 102, 106 (Colo. 1995) (“The court will not infer the agreement

necessary to form a conspiracy.”).

      3. Interference with Prospective Business Advantage

      As for the interference with prospective business advantage claim, the

district court determined it was barred because, notwithstanding its title, it alleged

interference with contract rights. See 28 U.S.C. § 2680(h) (restricting “[a]ny

claim arising out of . . . interference with contract rights”). Dr. Mecca disputes

                                          -8-
this characterization and distinguishes his claim as presenting a distinct tort for

interference with prospective business advantage. He cites Colorado Insurance

Group v. United States, 216 F. Supp. 787, 792-93 (D. Colo. 1963), where the

court acknowledged overlapping boundaries between contract claims and

interference with prospective business advantage claims, and asserts that like the

plaintiffs in Colorado Insurance Group, he seeks to recover for interference with

prospective business advantage.

      As pleaded, however, Dr. Mecca’s claim expressly accused the government

of “prevent[ing] the formation of an employment contract with other hospitals.”

Aplt. App. at 39. It alleged the government interfered with his “ability to gain

privileges at other hospitals,” which caused “damages in the form of lost wages,

impaired ability to earn a living, and other economic damages.” Id. This claim

clearly seeks to vindicate prospective employment contracts allegedly impeded or

prevented by the government’s conduct. It is thus is a claim for interference with

contract rights barred by § 2680(h). See Cooper v. Am. Auto. Ins. Co., 978 F.2d

602, 613 (10th Cir. 1992).

      4. Nature of Dismissal

      The last issue bearing on the FTCA claims is the district court’s dismissal

of these claims with prejudice. “A longstanding line of cases from this circuit

holds that where the district court dismisses an action for lack of jurisdiction . . .

the dismissal must be without prejudice.” Brereton v. Bountiful City Corp,

                                          -9-
434 F.3d 1213, 1216 (10th Cir. 2006). Here, because the district court found

itself without jurisdiction over the FTCA claims, dismissal should have been

entered without prejudice, even if the court deemed further amendment futile.

See id. at 1219. We therefore remand with instructions to enter dismissal of these

claims without prejudice. 2

B. Due Process Under Bivens

      Finally, Dr. Mecca challenges the dismissal of his due process claim for

failure to allege a cognizable property or liberty interest. 3 A successful

procedural due process claim requires a plaintiff to show (1) the deprivation of a

liberty or property interest and (2) the absence of due process. Stears v. Sheridan

Cnty. Mem’l Hosp. Bd. of Trs., 491 F.3d 1160, 1162 (10th Cir. 2007). Protected

property interests require “a legitimate claim of entitlement,” created not by the

Constitution but by independent sources such as statute, municipal ordinance, or

contract. Nichols v. Bd. of County Comm’rs, 506 F.3d 962, 969-70 (10th Cir.


2
      One might argue that dismissal without prejudice of the FTCA
claims—indeed, the Bivens claim as well—precludes appellate review, since such
dismissals usually are not final decisions. We have jurisdiction, however,
because the dismissal order finally disposed of the case and effectively excluded
Dr. Mecca from federal court. See Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d
1271, 1275 (10th Cir. 2001).
3
       Defendants contend dismissal of this claim may be affirmed on any of three
alternate grounds: (1) the complaint failed to allege personal participation by
defendants; (2) defendants were entitled to qualified immunity; and (3) the claim
is barred by Colorado’s two-year statute of limitations. Our disposition obviates
any need to consider these issues.

                                         -10-
2007) (quotation omitted). “However, if an employee voluntarily relinquishes a

property interest, then no procedural due process violation has occurred.”

Narotzky v. Natrona Cnty. Mem’l Hosp., ___ F.3d___, 2010 WL 2510659, at *5

(10th Cir. June 23, 2010).

      Here, although Dr. Mecca was working as an independent contractor when

he resigned from Evans Army, he does not contend his contract created a property

interest. Instead, he points to a provision of AR 40-68 that, according to him,

required “reasonable cause” to suspend his privileges. Aplt. Br. at 28. He also

asserts AR 40-68 conditioned the government’s authority to alter his staff

privileges on unsatisfactory patient care. Id. at 27. These limits on government

authority, Dr. Mecca contends, constitute a protected property interest because

they restrict the Army’s ability to adversely affect his privileges. The problem

with this argument, however, is that once again, none of these allegations are in

the amended complaint. Dr. Mecca answers that he was not required to

specifically cite the “reasonable cause” standard in the amended complaint, but

“[t]he court’s function on a Rule 12(b)(6) motion is . . . to assess whether the

plaintiff’s complaint alone is legally sufficient to state a claim for which relief

may be granted,” Swoboda, 992 F.2d at 290. Thus, contrary to Dr. Mecca’s

assertion, he was required to plead these allegations in his amended complaint.

      Nevertheless, even if Dr. Mecca had alleged a protected property interest

was created by AR 40-68 or his contract, his claim would still fail because he

                                          -11-
resigned. Indeed, Dr. Mecca’s resignation voluntarily relinquished any interest he

may have had. See Narotzky, 2010 WL 2510659, at *5; McBeth v. Himes,

598 F.3d 708, 723 (10th Cir. 2010) (holding that one who voluntarily relinquishes

some property or liberty interest cannot claim a due process violation because

there was no official deprivation). Accordingly, whether it be for the absence of

a protected property interest or the voluntary relinquishment of any such interest,

the claim was subject to dismissal under Rule 12(b)(6). 4

      The liberty interest claim suffers from similar deficiencies. Dr. Mecca

predicates his claim on the harm done to his professional reputation and

information reported to the Surgeon General, which he contends has impeded his

ability to earn a living and practice his profession. To show a deprivation of

one’s liberty interest in professional reputation, a plaintiff must demonstrate

(1) “statements [that] impugn the good name, reputation, honor, or integrity of the

employee”; (2) “the statements [were] false”; (3) the “statements . . . occur[red]

in the course of terminating the employee or must foreclose other employment

opportunities”; and (4) “the statements [were] published.” Watson v. Univ. of

Utah Med. Ctr., 75 F.3d 569, 579 (10th Cir. 1996) (quotation omitted).




4
      Dr. Mecca does not frame his claim as a constructive discharge, perhaps
because this court has not before recognized a cause of action for the denial of
procedural due process based on the constructive discharge of an independent
contractor. See Narotzky, 2010 WL 2510659, at *5 n.3.

                                        -12-
      Dr. Mecca claimed hospitals decline to hire him when they learn of his

suspension and he cannot find work due to the defendants’ actions. There is no

indication who published the information, however. Instead, Dr. Mecca simply

concludes that based on defendants’ actions, “the Army submitted [his] name to

the . . . Surgeon General.” Aplt. App. at 31. But there must be something to

plausibly suggest that these defendants published false information about the

suspension. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (explaining that

Twombly’s plausibility standard “asks for more than a sheer possibility that a

defendant has acted unlawfully”); see also Ridge at Red Hawk, L.L.C., v.

Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (“[T]he complaint must give the

court reason to believe that this plaintiff has a reasonable likelihood of mustering

factual support for these claims.”). Indeed, Twombly’s plausibility standard

requires “factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949.

Vague allegations against the entire Army do not suffice. Dr. Mecca asserts he

could show defendants’ culpability with discovery, but “[Fed. R. Civ. P.] 8 . . .

does not unlock the doors of discovery for a plaintiff armed with nothing more

than conclusions.” Id. at 1950. Dr. Mecca “has alleged—but . . . has not

shown—that [he] is entitled to relief,” id. (brackets and internal quotation marks

omitted), and as a consequence, the district court was correct to dismiss the claim.




                                         -13-
                                       III

      The judgment of the district court is AFFIRMED, but the case is

REMANDED to the district court with instructions to modify dismissal of the

FTCA claims to be without prejudice.



                                                 Entered for the Court


                                                 Stephen H. Anderson
                                                 Circuit Judge




                                       -14-
