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 be low, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the ca se, res judicata, and collateral estoppel.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 ar guments” or “searching the record” for support. Id. FILED United States Court of Appeals Tenth Circuit 

### June 3, 2021 Christopher M. Wolpert Clerk of Court2 Silva’s complaint alleges that when first assigning her a Social Security number in 1976, the Social Security Ad ministration 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—a nd after Silva had allegedly endured decades of negative consequences , including impacts on her credit report and the loss of her military car eer 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 Clai ms Act (FTCA), 28 U.S.C. § 1346. A magistrate judge reviewed her complaint a nd reasoned, “based on the injuries to reputational and economic interests for whic h . . . Silva is clai ming damages,” that her claims “sound[ed] in defa mation, negligent misreprese ntation, interference with contractual rights, and negligent or inte ntional infliction of emotional distress.” R. 196. The magistrate judge concluded that most of thes e 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 assau lt, battery, false impris onment, false arrest, malicious prosecution, abuse of process, libel, slander, mi srepresentation, deceit, or interference with contract rights.” A nd the claims that withstood § 2680(h)— negligent or intentional infliction of emo tional distress—failed to state a claim for which relief could be granted because Silva’ s allegations did not satisfy the elements3 of these claims under New Mexico law. 2 The magistrate judge therefore recommended dismissing the action for l ack of subject-matter jurisdiction. See JGE ex rel. Tasso v. United States , 772 F. App’x 608, 611 (10t h Cir. 2019) (holding that applicability of FTCA exceptions and “p laintiffs[’] fail[ure] to demonstrate analogous tort liability under New Mexico state law, as re quired by 28 U.S.C. § 1346(b)(1),” are “[b]oth issu es [that] implicate the dist rict court’s subject-matter jurisdiction because both are conditions on the government’s waiver of its sovereign immunity”). The district court agreed w ith the magistrate j udge’s analysis and dismissed the action without prejudice. Silva now appeals. We review de novo th e district court’s dismissal of the action for lack of subject-matte r jurisdiction under the FTCA. See Estate of Trentadue ex rel. Agu ilar 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 excepti ons.” Aplt. Br. 3. But the

2 The New Mexico Supreme Court has e xplained 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 “extr eme and outrageous conduct,” meaning conduct “which is ‘s o outrageous in character, a nd 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) (quoti ng Restatement (Second) of Torts § 46 cmt. d (Am. L. Inst. 1965)). As the district court put it, although “the conduct . . . Silva alleges is highly unfor tunate and has no doubt cause d her emotional distress over many years, she has not made out an ac tionable case of negligent or intentional infliction of emotional distress unde r 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 th e government did not invoke this exception, neither the magistrate judge nor the distri ct court even considered it. Nor did the district court “[d]ecide[] that the facts on the case we re based only on defamation,” as Silva
argues. Id. at 4. The district court simply agr eed with the magistrate judge that, “ to the extent that . . . Silva claims damages to her reputation as a result of the Administration’s false stat ements, 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 al so found her complaint to so und in misrepresentation, interference with contractual rights, a nd negligent or intentional infliction of emotional distress, and the di strict court explained why th ese other types of claims also failed to establish subject-matter jurisdiction under the FTCA. And Silva does not address these other aspects of the distri ct court’s decision; she only disclaims any intention of raising a defama tion claim. This argument is thus based on a misreading of the district court’s d ecision, and it fails to esta blish reversible error. Second, Silva argues that the United Stat es should be subject to suit under the FTCA because a private person in the gove rnment’s position would be liable for the alleged wrongful conduct. However, alt hough the FTCA generally waives sovereign immunity for government torts for which a pr ivate person would be held liable, this general waiver is subject to the specific excepti ons 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 were5 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 th e district court’s conclusion that the allegations in her complaint failed to state a valid emotiona l-distress claim. Third, Silva appears to argue that the di strict court erred in dismissing the case for lack of subject-matter ju risdiction because Silva alle ged a sufficient injury to establish Article III standi ng. However, the questions of standing and sovereign immunity are separate inquiri es; both must be satisfied in order for a plaintiff to proceed in a suit ag ainst the government. See Branson Sch. Di st. RE-82 v. Romer , 161 F.3d 619, 631 (10th Cir. 1998) (addressing question of sovereign immunity after separately holding that plain tiffs “alleged a sufficient ‘i njury-in-fact’ for purposes of Article III standing”). Regard less of whether Silva estab lished Article III standing, the district court could not exercise subj ect-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 se veral 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 (10th6 Cir. 2008). We accordingly will not address th e issues that Silva raises for the first time in her reply brief. See id. In conclusion, we agree with the distri ct court that “the conduct . . . Silva alleges is highly unfortunate,” but these unfortunate circ umstances do not negate her responsibility to establish a valid claim for relief agai nst the government. R. 215. Because Silva has not shown that the distri ct 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