F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 18, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
B ILLY LO RD PU N CH A RD ,
Plaintiff-Appellant,
v. No. 05-2233
(D.C. No. CIV-05-10-LH /RH S)
TH E U NITED STA TES B UR EAU OF (D . N.M .)
LA ND M ANAGEM EN T; U.S.
GENERAL SERVICE
ADM INISTRATION, U.S. General
Services Administration, (President
George W . Bush; Republic of the
United States of N orth America),
Defendants- Appellees.
OR D ER AND JUDGM ENT *
Before KELLY, BR ISC OE, and LUCERO, Circuit Judges.
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. The 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.
Plaintiff Billy Lord Punchard 1 appeals from the district court’s order
dismissing his complaint with prejudice on various grounds. Punchard also has
filed a number of motions, including a motion for a writ of mandamus.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the district
court’s dismissal and D EN Y his motions.
Although Punchard’s complaint, like most of his papers, is difficult to
understand, it appears he claims that the Bureau of Land M anagement (“BLM ”)
and the General Services A dministration (“GSA”) 2 conspired unlaw fully to
deprive him of unpatented mining claims he established in 1978 on land in
Deming, New M exico, by denying him a patent and selling the land to the Luna
County Commission in 1990. The complaint appears to set forth claims for an
illegal seizure under the Fourth Amendment, a taking or due process violation
under the Fifth Amendment, a violation of the Civil Rights Act of 1871,
42 U.S.C. § 1983, and a breach of contract claim concerning a mining lease.
Punchard requests the return of his mining claims or compensatory damages in
1
Punchard styles himself as a representative of his “co-appellant,” the Royal
Democratic States of Continental A frica Government. Noting that this
governmental entity is non-existent, a panel of this court affirmed a district court
conclusion that Punchard’s claim to be its representative is delusional. See
Punchard v. New M exico, 56 Fed. Appx. 443, 444 (10th Cir. 2003) (unpublished).
Accordingly, we disregard any reference or argument Punchard makes that
depends on that entity’s alleged existence.
2
It appears that Punchard also names the United States and President George W .
Bush as defendants.
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the sum of $28 million and punitive damages of $20 million. In the alternative,
he requests a piece of property in Fort W ingate, New M exico.
Defendants moved to dismiss the action pursuant to Fed. R. Civ.
P. 12(b)(1), (6) for lack of subject matter jurisdiction and failure to state a claim
upon which relief can be granted, and pursuant to Fed. R. Civ. P. 8(a) for failure
to set forth a short and plain statement of the claims. The district court granted
the motion on all grounds, and this appeal followed.
W e review de novo the district court’s dismissal of an action for lack of
subject matter jurisdiction and failure to state a claim upon which relief can be
granted. U.S. W est, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999); Sutton
v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
W e review a dismissal based on Rule 8 for an abuse of discretion. Kuehl v.
FD IC, 8 F.3d 905, 908 (1st C ir. 1993). Because Punchard appears pro se, we
review his pleadings and other papers liberally and hold them to a less stringent
standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519,
520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
Punchard’s initial argument on appeal, reiterated in his request for a writ of
mandamus, is that defendants never filed a timely answer to his complaint.
Therefore, he concludes, defendants have conceded this suit. The district court
implicitly rejected this argument, and we conclude that it lacks merit. The record
indicates that Punchard filed his complaint on January 4, 2005, and served it on
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the BLM and the GSA on January 11, 2005. It appears that Punchard may have
served the United States Attorney’s office on February 24 or 25, 2005. 3
Defendants had sixty days from that date, or until April 24 or 25, to file an
answ er or otherw ise respond to his complaint. See Fed. R. Civ. P. 12(a)(3)(A)
(providing that an agency of the United States has sixty days to file an answer as
measured from the date on which the United States Attorney is served).
Defendants’ April 19, 2005, motion to dismiss was timely filed in lieu of an
answer. See Fed. R. Civ. P. 12(a)(4).
W e discern several other arguments in Punchard’s disorganized appellate
briefs. First, he contends the district court erred by determining that defendants
are immune from his conspiracy claims under 42 U.S.C. § 1983. The federal
government is not subject to suit under § 1983; instead, Punchard’s claim is
governed by Bivens v. Six Unknown Named A gents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), in which the Supreme Court recognized an
implied cause of action against federal actors in their individual capacities for
deprivation of Fourth Amendment rights. Id. at 389. Bivens actions lie only
against federal actors in their individual capacities, not in their official capacities
and not against the federal agencies for which they work. See Steele v. Fed. Bur.
3
W e need not resolve the discrepancy between what may have been service on
the U.S. Attorney by certified mail on February 24 or 25, 2005, and the date that
accompanies the signature of the clerk of the court, M arch 25, 2005. For the sake
of argument, we assume service was completed on February 24 or 25.
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of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003). Punchard has not named any
federal actors in their individual capacities. Even if we treat his complaint as
setting forth a claim against the President in his individual capacity, it fails
because Punchard has not alleged personal participation by the President, as
required in a Bivens action. See id. Accordingly, the district court properly
dismissed this claim for failure to state a claim on which relief can be granted.
Punchard argues that his conspiracy claim under § 1983 somehow falls
under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”).
Therefore, he reasons, sovereign immunity is not a defense. Punchard did not
argue in the district court that he was asserting a claim under the FTCA, and one
is not evident even from a liberal reading of his complaint. Therefore, he has
failed to preserve this issue for appellate review. See W alker v. M ather (In re
W alker), 959 F.2d 894, 896 (10th Cir. 1992). Even if we considered his
argument, his conspiracy claim is predicated on a constitutional tort, the alleged
seizure or taking of his mining claims in violation of the Fourth or Fifth
Amendment. Constitutional torts are not cognizable under the FTCA. FD IC v.
M eyer, 510 U.S. 471, 477-78 (1994). Accordingly, he has not stated an FTCA
claim on which relief can be granted. 4
4
Punchard also takes issue with the district court’s conclusion that, under
5 U .S.C. § 702, the U nited States has not waived sovereign immunity against
claims seeking money damages that arise under the Administrative Procedures
Act (“APA ”). He argues that his claim arises under § 1983 (which we have
(continued...)
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Punchard has not challenged the district court’s conclusion that, to the
extent he seeks monetary damages in excess of $10,000, the U nited States Court
of Federal Claims has exclusive jurisdiction over his takings claim against the
United States pursuant to the Tucker A ct, 28 U.S.C. §§ 1346(a)(2) & 1491, a
conclusion with which we agree. Although we may transfer a case to the Court of
Federal Claims pursuant to 28 U.S.C. § 1631 when it is in the interest of justice,
we decline to do so here because Punchard’s takings claim accrued no later than
1990 and is barred by the six-year statute of limitations for actions against the
United States set forth in 28 U.S.C. § 2401(a).
Based on our review of Punchard’s complaint, we find no abuse of
discretion in the district court’s decision to dismiss any other claims that may be
set forth in the complaint for failure to comply with Rule 8’s short and plain
statement requirements.
Punchard’s argument that the district court judge had no power to grant the
motion to dismiss because Punchard asked for a jury trial has no merit. Actions
against the United States generally are tried to the court, not a jury. See
28 U.S.C. § 2402. In any event, a district court has the authority to hear and
decide defenses raised under Rule 12(b) prior to trial, see Fed. R. Civ. P. 12(d);
4
(...continued)
treated as a Bivens claim and rejected), and that the United States has no
immunity against such claims. See Aplt. Opening Br. at 7. W e construe this
argument as an admission that Punchard does not seek relief under the APA and
address the issue no further.
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Christensen v. Ward, 916 F.2d 1462, 1466 (10th Cir. 1990) (holding that Seventh
Amendment right to jury trial not violated by court’s dismissal for failure to state
a claim pursuant to Rule 12(b)(6) because, as a matter of law , complaint failed to
present an issue for trial); Rosemound Sand & Gravel Co. v. Lambert Sand &
Gravel Co., 469 F.2d 416, 418 (5th Cir. 1972) (holding that Seventh Amendment
right to jury trial not violated by court’s dismissal for lack of jurisdiction).
Punchard is not entitled to mandamus relief because his direct appeal
provides him an adequate opportunity to obtain the relief he requests in his
mandamus petition. See United States v. W est, 672 F.2d 796, 799 (10th Cir.
1982). In his motion to compel, Punchard requests this court to order defendants
to provide the relief he seeks in his complaint as some sort of settlement. This
court lacks jurisdiction to compel defendants to enter a settlement. Likewise, w e
lack jurisdiction over his motion to open an international duty-free trade zone.
W e deny his motion for a permanent injunction against removal of any
improvements to the land at issue in this case because he has not shown actual
success on the merits. See Fisher v. Okla. Health Care Auth., 335 F.3d 1175,
1180 (10th Cir. 2003).
The judgment of the district court is AFFIRM ED and Punchard’s pending
motions are DENIED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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