UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

BARBARA SILVA, 

 Plaintiff - Appellant, 

v. 

UNITED STATES OF AMERICA, 

 Defendant - Appellee. 

No. 21-2005 

(D.C. No. 1:17-CV-01224-MV-JHR) 

(D.N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MORITZ, BALDOCK, and EID, Circuit Judges. 

_________________________________ 

Barbara Silva, proceeding pro se,1

 appeals the district court’s order dismissing 

her lawsuit against the United States as barred by sovereign immunity. For the 

reasons explained below, we affirm. 

*

 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 

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 This order and judgment is not binding precedent, 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. 

But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 

32.1(A). 

1

 We liberally construe pro se filings. See Garrett v. Selby Connor Maddux & 

Janer, 425 F.3d 836, 840 (10th Cir. 2005). But we do not act as a pro se litigant’s 

advocate by, for example, “constructing arguments” or “searching the record” for 

support. Id.

FILED 

United States Court of Appeals 

Tenth Circuit 

June 3, 2021

Christopher M. Wolpert 

Clerk of Court
2 

Silva’s complaint alleges that when first assigning her a Social Security 

number in 1976, the Social Security Administration negligently assigned her a 

number that had already been assigned to another individual. The Administration 

issued her a new and unique Social Security number in 1993. But it did not admit to 

its initial mistake until 2015, after a senator intervened—and after Silva had allegedly 

endured decades of negative consequences, including impacts on her credit report and 

the loss of her military career when the individual who shared her Social Security 

number declared bankruptcy. 

As a result, Silva filed this action, seeking damages from the federal 

government under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346. A 

magistrate judge reviewed her complaint and reasoned, “based on the injuries to 

reputational and economic interests for which . . . Silva is claiming damages,” that 

her claims “sound[ed] in defamation, negligent misrepresentation, interference with 

contractual rights, and negligent or intentional infliction of emotional distress.” 

R. 196. The magistrate judge concluded that most of these claims were accordingly 

barred by 28 U.S.C. § 2680(h), which provides that the government may not be sued 

in tort for “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, 

malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or 

interference with contract rights.” And the claims that withstood § 2680(h)— 

negligent or intentional infliction of emotional distress—failed to state a claim for 

which relief could be granted because Silva’s allegations did not satisfy the elements 
3 

of these claims under New Mexico law.2

 The magistrate judge therefore 

recommended dismissing the action for lack of subject-matter jurisdiction. See JGE 

ex rel. Tasso v. United States, 772 F. App’x 608, 611 (10th Cir. 2019) (holding that 

applicability of FTCA exceptions and “plaintiffs[’] fail[ure] to demonstrate 

analogous tort liability under New Mexico state law, as required by 28 U.S.C. 

§ 1346(b)(1),” are “[b]oth issues [that] implicate the district court’s subject-matter 

jurisdiction because both are conditions on the government’s waiver of its sovereign 

immunity”). The district court agreed with the magistrate judge’s analysis and 

dismissed the action without prejudice. 

Silva now appeals. We review de novo the district court’s dismissal of the 

action for lack of subject-matter jurisdiction under the FTCA. See Estate of 

Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852, 854 (10th Cir. 2005). 

Silva first argues that the district court “[e]rroneously congregat[ed] the entire 

case to [d]efamation and/or discretionary[-]function exceptions.” Aplt. Br. 3. But the 

2

 The New Mexico Supreme Court has explained that negligent infliction of 

emotional distress “is an extremely narrow tort that compensates a bystander who has 

suffered severe emotional shock as a result of witnessing a sudden, traumatic event 

that causes serious injury or death to a family member.” Fernandez v. Walgreen 

Hastings Co., 968 P.2d 774, 777 (N.M. 1998). And a claim of intentional infliction of 

emotional distress requires the plaintiff to show “extreme and outrageous conduct,” 

meaning conduct “which is ‘so outrageous in character, and so extreme in degree, as 

to go beyond all possible bounds of decency, and to be regarded as atrocious, and 

utterly intolerable in a civilized community.’” Trujillo v. N. Rio Arriba Elec. Coop., 

Inc., 41 P.3d 333, 342–43 (N.M. 2001) (quoting Restatement (Second) of Torts § 46 

cmt. d (Am. L. Inst. 1965)). As the district court put it, although “the conduct . . . 

Silva alleges is highly unfortunate and has no doubt caused her emotional distress 

over many years, she has not made out an actionable case of negligent or intentional 

infliction of emotional distress under th[is] prevailing law.” R. 215. 
4 

district court did not rely on § 2680(a)’s discretionary-function exception to dismiss 

the case; indeed, because the government did not invoke this exception, neither the 

magistrate judge nor the district court even considered it. Nor did the district court 

“[d]ecide[] that the facts on the case were based only on defamation,” as Silva 

argues. Id. at 4. The district court simply agreed with the magistrate judge that, “to 

the extent that . . . Silva claims damages to her reputation as a result of the 

Administration’s false statements, the United States retains immunity” based on 

§ 2680(h)’s exceptions for libel and slander. R. 197 (emphasis added). The magistrate 

judge and district court also found her complaint to sound in misrepresentation, 

interference with contractual rights, and negligent or intentional infliction of 

emotional distress, and the district court explained why these other types of claims 

also failed to establish subject-matter jurisdiction under the FTCA. And Silva does 

not address these other aspects of the district court’s decision; she only disclaims any 

intention of raising a defamation claim. This argument is thus based on a misreading 

of the district court’s decision, and it fails to establish reversible error. 

Second, Silva argues that the United States should be subject to suit under the 

FTCA because a private person in the government’s position would be liable for the 

alleged wrongful conduct. However, although the FTCA generally waives sovereign 

immunity for government torts for which a private person would be held liable, this 

general waiver is subject to the specific exceptions listed in § 2680(h). See Ecco 

Plains, LLC v. United States, 728 F.3d 1190, 1195 (10th Cir. 2013). And Silva has 

not shown that the district court erred in concluding that most of her claims were 
5 

barred by these exceptions. Further, although her emotional-distress claims are not 

subject to § 2680(h)’s exceptions, she does not cite to any case in which a private 

person was found liable for the infliction of emotional distress in similar 

circumstances, nor does she challenge the district court’s conclusion that the 

allegations in her complaint failed to state a valid emotional-distress claim. 

Third, Silva appears to argue that the district court erred in dismissing the case 

for lack of subject-matter jurisdiction because Silva alleged a sufficient injury to 

establish Article III standing. However, the questions of standing and sovereign 

immunity are separate inquiries; both must be satisfied in order for a plaintiff to 

proceed in a suit against the government. See Branson Sch. Dist. RE-82 v. Romer, 

161 F.3d 619, 631 (10th Cir. 1998) (addressing question of sovereign immunity after 

separately holding that plaintiffs “alleged a sufficient ‘injury-in-fact’ for purposes of 

Article III standing”). Regardless of whether Silva established Article III standing, 

the district court could not exercise subject-matter jurisdiction over claims for which 

the government had not waived its sovereign immunity. See JGE, 772 F. App’x at 

611. 

Lastly, Silva’s reply brief includes several new arguments. For instance, she 

seems to raise a new theory of government liability, suggesting that the district court 

should have treated her complaint as an action under the Administrative Procedures 

Act or some other statute, rather than as an FTCA action. But “issues raised by an 

appellant for the first time on appeal in a reply brief are generally deemed waived,” 

even when the appellant is pro se. Wheeler v. Comm’r, 521 F.3d 1289, 1291 (10th 
6 

Cir. 2008). We accordingly will not address the issues that Silva raises for the first 

time in her reply brief. See id.

In conclusion, we agree with the district court that “the conduct . . . Silva 

alleges is highly unfortunate,” but these unfortunate circumstances do not negate her 

responsibility to establish a valid claim for relief against the government. R. 215. 

Because Silva has not shown that the district court erred in dismissing this action 

without prejudice based on the government’s sovereign immunity under the FTCA, 

we affirm. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge