Teufel v. Marshall et al

Filing 63

MEMORANDUM DECISION AND ORDER granting 39 Motion to Dismiss for Lack of Jurisdiction ; granting in part 42 Motion to Dismiss Party. Signed by Magistrate Judge Cecilia M. Romero on 8/29/2024. (alf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DANIEL TEUFEL,

MEMORANDUM DECISION & ORDER
GRANTING FEDERAL DEFENDANTS’
[39] MOTION TO DISMISS &
GRANTING IN PART DR. DAVID
MCCANN’S [42] MOTION TO DISMISS

Plaintiff,
v.
MARTIN MARSHALL, GREG OLSON,
WILLIAM E. KING IV, JIMMIE
BARNETT, CYNDIE VARIO JAY,
KRISTINA M. VOKT, and DAVID
MCCANN,

Case No. 2:23-cv-00408-CMR
Magistrate Judge Cecilia M. Romero

Defendants.
The parties have consented to the jurisdiction of the undersigned, including entry of a final
judgment pursuant to 28 U.S.C. § 636(c) (ECF 48). Before the court are two Motions to Dismiss
(ECF 39 & 42). The first is pursuant to Federal Rule of Civil Procedure 12(b)(1) and Rule 12(b)(6),
and is filed by Defendants Jimmie Barnett, William E. King, Martin Marshall, Greg Olson, Cyndie
Vario Jay, and Kristina M. Vokt (collectively, Federal Defendants) (ECF 39). The second is filed
by Dr. David McCann (Dr. McCann) (ECF 42) pursuant to Rule 12(b)(6). The court also considers
Plaintiff David Teufel’s (Plaintiff) Responses to the Motions (ECF 52 & 53), Defendants’ Replies
in Support (ECF 54 & 55), oral argument presented by the parties on June 25, 2024 (ECF 58), and
the court-ordered supplemental briefing (ECF 59–62). Having considered the relevant filings, and
for the reasons herein, the court hereby GRANTS the Federal Defendants’ Motion (ECF 39) and
GRANTS IN PART Dr. McCann’s Motion (ECF 42).

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I.

BACKGROUND

This case involves a former physical science technician for the Department of the Army
who alleges to have had his security clearance unconstitutionally revoked and his ability to freely
work stripped upon findings of mental disorders against him deriving from a Fitness for Duty
Examination (ECF 1 at 4–5). According to the Complaint, Plaintiff was employed by the Army
from 2002 until 2011 at Dugway Proving Ground (Dugway) (id. at 6). On January 19, 2011,
Plaintiff alleges he was ordered to undergo a psychological evaluation relating back to an Incident
Report that dated back to November 2, 2006 (2006 Report) (id. at 6–7). The 2006 Report involved
statements collected that Plaintiff was “paranoid and he was the one responsible for any hostility
in the work group” (id at 7). At the time of the 2006 Report, Plaintiff filed three active
investigations for hostile work environment, equipment damage, and abuse of power by Defendant
Olson. Id. The matter underlying the 2006 Report was ultimately settled, but the 2006 Report itself
“was never cleared out” (id. at 7–8).
Plaintiff alleges the psychological evaluation took place after Plaintiff, in February of 2010,
raised another concern regarding “unsafe conditions in a Wi-Fi tower system” (ECF 1 at 7–8). On
February 15, 2011, Plaintiff was examined by Dr. McCann, who found Plaintiff suffered from
Delusional and Paranoid Personality Disorder (id. at 10–12). Plaintiff however alleges Dr. McCann
was not provided all the personnel records and therefore lacked a “fuller view” of Plaintiff (id. at
10). As a result of the evaluation, Plaintiff was allegedly indefinitely suspended from his position
at Dugway, and his security clearance was revoked (id. at 10–12). The Army Central Personnel
Security Clearance Facility (CCF) issued its Notice of Intent to Revoke Security Clearance (the
Notice) to Plaintiff on May 18, 2011 (id. at 11). Plaintiff alleges the basis of the Notice was based
entirely on Dr. McCann’s evaluation (id.).

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Shortly after receiving the Notice, Plaintiff responded to it, providing his home address
where he still currently resides (ECF 1 at 12). On April 24, 2012, Plaintiff’s previous counsel,
from Strindberg & Scholnick, received the CCF’s issued Revocation of Security Clearance (id.).
By June 4, 2012, Plaintiff submitted additional evidence rebutting the findings of Dr. McCann, but
the revocation was ultimately affirmed by the CCF on September 11, 2012, via the Reconsideration
of Security Clearance Determination (Reconsideration Determination) (id. at 13–14).
The Reconsideration Determination informed Plaintiff that he could appeal the
Reconsideration Determination to the U.S. Army Personnel Security Appeals Board (PSAB) or
the Defense Office of Hearings Appeals (DOHA) (ECF 1 at 14). However, neither prior counsel
for Plaintiff, nor Plaintiff received the Reconsideration Determination until January 23, 2017,
following a Freedom of Information Act (FOIA) request (id.). Plaintiff alleges that Defendant
Vario Jay sent or directed the Reconsideration Determination to be sent to Plaintiff’s Dugway
address and military email and not his home address (id.). Plaintiff was therefore allegedly unable
to timely appeal the clearance revocation (id. at 15).
Regardless, prior to the FOIA request Plaintiff attempted to appeal his indefinite
suspension from his position at Dugway to the Merit System Personnel Board (MSPB), but the
MSPB denied it and ruled that it lacked jurisdiction over the security clearance revocation which
was the basis for the indefinite suspension (ECF 1 at 15). After learning about the Reconsideration
Determination, Plaintiff alleges to have submitted an appeal letter to U.S. President Joseph R.
Biden, Jr. on January 3, 2021 (id.).
Plaintiff asserts three different claims under the Fifth Amendment (ECF 1 at 16–18). First,
Plaintiff argues that the Federal Defendants violated his “5th Amendment Due Process rights by
unreasonably, and without justification, subjecting Plaintiff to an unwarranted Psychological

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Evaluation” (id. at 16). Plaintiff’s second claim is alleged against “Defendant Vario Jay and/or
Defendant Does 1-5” and asserts Plaintiff has a “liberty and property interest in maintaining his
security clearance with the Army” and by failing to provide Plaintiff the Reconsideration
Determination, he was denied the opportunity to be heard which violated his rights under the due
process clause of the Fifth Amendment, resulting in Plaintiff being unable to appeal such
determination to the U.S. Army PSAB or the DOHA (id. at 17). The third claim alleges that
Plaintiff’s liberty and property interests in maintaining his security clearance with the Army were
violated after Defendants Vokt, Vario Jay, Barnett, King, and Doe Defendants failed to provide
Dr. McCann with sufficient information to properly evaluate Plaintiff, that Dr. McCann made
conclusions lacking sufficient information to do so, and Defendants King, Barnett, Vario Jay, and
Vokt failed to remedy or supplement the information provided for Plaintiff’s examination (id. at
18). Plaintiff seeks monetary relief for his alleged suffered constitutional violations, along with
attorney fees, and other costs under Bivens. 1
Under Rule 12(b)(1) the Federal Defendants initially argued that this court lacked subject
matter jurisdiction over Plaintiff’s claims as the action present a nonjusticiable national security
question, and because the matters are “preempted by the Civil Service Reform Act (CSRA) and
Title VII of the Civil Rights Act of 1964” (ECF 39 at 2). The preemption arguments under the
CSRA and Title VII, however, were not reasserted in their Reply and were confirmed to be
withdrawn at oral argument. Under Rule 12(b)(6) the Federal Defendants also argue that the claims
are time-barred by the four-year statute of limitations for Bivens claims, Plaintiff fails to state a
claim for a due process right violation as he has no constitutional protected right in his national
security clearance, fails to allege circumstances that implicate a Bivens money damage remedy,

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Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

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and that they are entitled to qualified immunity (id.). Plaintiff responds that the court has
jurisdiction over his claims under Bivens, his claims are not barred under the CSRA or Title VII,
and he has sufficiently pled claims under Bivens defeating any Rule 12(b)(6) arguments (ECF 52).
With respect to the third and only claim against Dr. McCann, Dr. McCann seeks dismissal
under Rule 12(b)(6) but really argues that the court lacks subject matter jurisdiction over Plaintiff’s
claims, which is a Rule 12(b)(1) argument. Dr. McCann argues because this is a malpractice case,
any claim that Plaintiff could have brought against Dr. McCann is procedurally deficient under
Utah Code. Ann. § 78B-3-403(11), (13) (the Utah Malpractice Act) (ECF 42 at 2, 4). Further, Dr.
McCann argues that Plaintiff’s claims are barred under the Utah Malpractice Act’s statute of
limitations (id. at 3). Plaintiff argues in response that the Utah Malpractice Act is inapplicable, that
the court has proper jurisdiction over his claims pursuant to 28 U.S.C. § 1331, and that he has
sufficiently pled claims under Rule 12(b)(6) (ECF 53 at 6–8).
II.

LEGAL STANDARDS

Federal Rule of Civil Procedure 12(b)(1) allows a court to dismiss a complaint for “lack of
jurisdiction over the subject matter.” “The party invoking federal jurisdiction bears the burden of
establishing it.” Lopez v. United States, No. 223CV00417DBBJCB, 2023 WL 8378516, at *1 (D.
Utah Nov. 14, 2023), report and recommendation adopted, No. 223CV00417DBBJCB, 2023 WL
8376181 (D. Utah Dec. 4, 2023). “To do so, the plaintiff ‘must allege in his pleading the facts
essential to show jurisdiction, and must support [those facts] by competent proof.’” Id. (quoting
U.S. ex rel. Precision Co. v. Kock Indus., 971 F. 2d 548, 551 (10th Cir. 1992)). A federal court
must dismiss the action under Fed. R. Civ. P. 12(b)(1) when it appears the court lacks jurisdiction
over the subject matter. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006). Federal courts also
“have an independent obligation to determine whether subject-matter jurisdiction exists, even in

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the absence of a challenge from any party,” and thus a court may sua sponte raise the question of
whether subject matter jurisdiction exists at any time. Id. at 501.
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Although the court must accept all well-pleaded factual allegations as true, the court may not
accept as true conclusory allegations or legal conclusions couched as factual allegations. Id.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Id.
III.

DISCUSSION

a. The Court Dismisses Plaintiff’s Complaint for Lack of Subject Matter
Jurisdiction and Failure to State a Plausible Claim.
i. The First and Third Claims Against the Federal Defendants are Dismissed
for Lack of Jurisdiction.
The Federal Defendants begin by arguing that Plaintiff’s claims are nonjusticiable and
outside of this court’s jurisdiction (ECF 39 at 2). For the reasons below, the court finds Plaintiff’s
first and third claims regard allegations on the merits or motives for the decision to revoke
Plaintiff’s security clearance and are therefore dismissed as this court lacks jurisdiction over them.
Generally, this court is prohibited from conducting “any external review (including judicial
review) of security clearance decisions.” Duane v. U.S. Dep't of Defense, 275 F.3d 988, 993 (10th
Cir. 2002). This is because “an agency derives its authority to grant or deny security clearances
from the President's Article II Commander-in-Chief authority,” Sanchez v. United States Dep't of
Energy, 870 F.3d 1185, 1193 (10th Cir. 2017), causing courts to be “reluctant to intrude upon the
authority of the Executive in military and national security affairs.” Id. (quoting Dep't of Navy v.

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Egan, 484 U.S. 518, 530 (1988)). Given these implicated national-security interests, an “‘outside
nonexpert body to review the substance of such’ decisions[, like the court], is unreasonable
because they require ‘[p]redictive judgment[s] [that] ... must be made by those with the necessary
expertise in protecting classified information.’” Sanchez, 870 F.3d at 1193. Thus, “[w]hatever
expectation an individual might have in a clearance is unilateral at best, and thus cannot be the
basis for a constitutional right.” Hill v. Dep't of Air Force, 844 F.2d 1407, 1411 (10th Cir. 1988)
(citing Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).
Hence, matters involving the “merits or motives of a decision to revoke or deny a security
clearance” are categorically non-justiciable and dismissed for lack of jurisdiction. Sanchez, 870
F.3d at 1192. However, this court may review Plaintiff’s claims if there is a claim that an “agency
violated its own procedural regulations when revoking or denying a security clearance.” See
Duane, 275 F.3d at 993 (“We are not, however, precluded from reviewing a claim that an agency
violated its own procedural regulations when revoking or denying a security clearance, and we
may relatedly compel an agency to follow its own regulations.”).
To decide whether Plaintiff’s security questions presented are justiciable, the court
engages in a two-part framework. First, the court decides whether the question presented involves
the revocation decision of a security-clearance decision. Second, if it does, the court then
determines whether Plaintiff’s “claims challenge the merits or motives of that decision.” Sanchez,
870 F.3d at 1192. If so, the claims must be dismissed. Id. If not, the court analyzes whether the
alleged constitutional violations “form an independent jurisdictional basis by which the district
court could proceed to examine and pass on the merits” of the decision to suspend a security
clearance. Hill, 844 F.2d at 1411.
Under this standard, the court finds that Plaintiff’s first and third claims must be dismissed

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for lack of jurisdiction as they present nonjusticiable questions. Reading Plaintiff’s Complaint, the
first cause of action relates entirely to the merits or motives regarding the revocation of Plaintiff’s
security clearance. Plaintiff’s first claim alleges that Plaintiff’s medical evaluation “was
unreasonable and without justification” (ECF 1 at 16). The Complaint further alleges that Federal
Defendants violated Plaintiff’s Fifth Amendment right by failing to close out Plaintiff’s 2006
Report and failing to explain to CCF that the medical evaluation was inappropriate (id.). Resolving
the question of whether the medical evaluation was appropriate, or whether the 2006 Report
affected Dr. McCanns’ subsequent evaluation would require the court to inquire about the merits
or motives for Plaintiff’s examination. Accordingly, the first claim alleges questions on the merits
or motives of the decision to revoke Plaintiff’s security clearance and the claim is therefore
DISMISSED for lack of jurisdiction.
Similarly, Plaintiff’s third claim goes directly towards the merits or the motives behind the
revocation of Plaintiff’s security clearance. Plaintiff’s third cause of action alleges constitutional
violations from Federal Defendants’ failure to provide Dr. McCann with sufficient information for
Dr. McCann to make appropriate conclusions and assessments (id. at 18). More specifically,
Plaintiff argues that Federal Defendants’ failure to “correct, remedy, or supplement the
information provided” to Dr. McCann constitutes a constitutional violation (id.). Inherently, this
court’s review of information provided to Dr. McCann and its use that led to his conclusions would
result in the review of the merits behind security clearance decision. Accordingly, this court lacks
jurisdiction over Plaintiff’s third claim and therefore DISMISSES it.
ii. The Court also Dismisses Plaintiff’s Complaint as to Dr. McCann for Lack
of Jurisdiction.
Regarding Dr. McCann, Plaintiff’s Complaint only attributes conduct to Dr. McCann in
the third cause of action (see ECF 1 at 16–18). As to the Motion, Dr. McCann argues that Plaintiff’s
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Complaint is procedurally deficient under the Utah Malpractice Act and that any possible claims
are time barred (id. at 2–4). The Motion construes the entire action as malpractice action and argues
that any claim raised in Plaintiff Complaint, regardless of its basis, was precluded under the Utah
Malpractice Act (id. at 4). Dr. McCann did not, however, address whether the Utah Malpractice
Act could preclude a federal cause of action.
Recognizing that Plaintiff alleges federal constitutional violations, the court on its own
inquired into the question of whether the Utah Malpractice Act could preempt a claim under
Bivens. The court found Harrell by & through next friend Harrell v. S. Jordan Care Grp., LLC,
No. 2:19-CV-00315-PMW, 2020 WL 1550788, at *2–3 (D. Utah Mar. 31, 2020), which is
instructive. The plaintiff there brought claims under the Fair Housing Act (FHA), and after looking
at how the Utah Supreme Court had defined the scope of the Utah Malpractice Act, the court held
the FHA claims were not preempted by the Utah Malpractice Act because they were only
tangentially related to the healthcare services provided. Id.
The Harrell case was raised to the parties at the hearing held on June 25, 2024. Counsel
for Dr. McCann stated that he was not ready to address the case, and the court ultimately ordered
a supplemental brief addressing the preemption question under the Utah Malpractice Act and
addressing Harrell (see ECF 58). In Dr. McCann’s brief he first stated that he was unable to find
any cases in which the Utah Malpractice Act trumped a federal cause of action (ECF 59 at 1). He
also argued, on the application of Harrell, that unlike allegations of discriminatory practices, the
present action is not tangentially related to the Utah Malpractice Act because any liability alleged
against Dr. McCann is directly related to his diagnosis, “which relate to or arise out of health care
rendered” (id. at 4). Further, Dr. McCann argues that the jurisdiction requirements of Bivens and
the Utah Malpractice Act are not in conflict (id.). Plaintiff responded and simply argued that

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Harrell applies here and thus his claims are not barred (ECF 62 at 2–3).
Despite the supplemental briefing by the parties, the court need not reach this question
here. As stated, the only claim that explicitly attributes any conduct to Dr. McCann is the third
cause of action (see ECF 1 at 16–18). As this court has explained above, the question presented in
Plaintiff’s third claim is one that raises non-justiciable matters. Accordingly, Plaintiff’s third cause
of action, and consequently Complaint, is DISMISSED as to Dr. McCann for lack of subject matter
jurisdiction under the same rationale as the Federal Defendants. 2
iii. Plaintiff’s Second Claim, although Justiciable, is not Sufficiently Pled.
The only surviving claim is the second, which only explicitly names Defendant Vario Jay
or Doe Defendants (ECF 1 at 17). Unlike the first and third claims, Plaintiff’s second claim shifts
focus from the merits and motives of the revocation and instead centers on due process he alleges
he was not afforded (id.). Plaintiff alleges he did not learn about the Reconsideration
Determination until 2017 because it was not sent to his home address but rather his email and
address at Dugway (id. at 14, 17). Plaintiff’s second claim alleges that Defendant Vario Jay or Doe
Defendants’ failure to provide Plaintiff with the Reconsideration Determination resulted in
Plaintiff’s inability to timely appeal the decision in the Reconsideration, which resulted in a
violation of his rights under the Fifth Amendment Due Process Clause (id. at 17). As pled, this
does not appear to address the merits or process of the revocation, but rather, that Plaintiff was not
afforded proper notice (id. at 5, 17).
In support of his second claim, Plaintiff cites to Coleman v. Utah State Charter Sch. Bd.,

The court notes that Dr. McCann did not raise this argument, but the case law cited by the Federal Defendants is
clear the court lacks jurisdiction over Plaintiff’s third claim. And the court may sua sponte consider subject matter
jurisdiction at any time. See Arbaugh, 546 U.S. at 506. The court thus, pursuant to the “just, speedy, and inexpensive
determination of every action and proceeding,” dismisses the claim against Dr. McCann under the same rationale.
Fed. R. Civ. P. 1.
2

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673 F. App'x 822, 833 (10th Cir. 2016), which in turn cites to Greene v. McElroy, 360 U.S. 474,
508 (1959). Plaintiff alleges he has a liberty and property interest in maintaining his security
clearance for his employment protected by the Fifth Amendment Due Process Clause (ECF 1 at
5–6). As discussed below, however, Coleman and Greene are distinguishable from this case.
In Coleman, the Tenth Circuit acknowledged that the Supreme Court had previously
recognized Due Process rights for a private defense contractor that had his security clearance
revoked without a hearing. Coleman, 673 F. App’x at 832; see also Greene, 360 U.S. at 508. The
court in Coleman restated the general holding in Greene that a “summary” revocation with no
hearing violated the contractor’s ability to follow a chosen profession free from unreasonable
governmental interference under the Fifth Amendment. Coleman, 673 F. App’x at 832. But the
court in Coleman also recognized the Tenth Circuit has yet to extend this recognized constitutional
theory in private employment beyond the specific cases in which the United States Supreme Court
had done so itself. Id. at 833 (“we acknowledge that the Supreme Court has established a right
against arbitrary governmental interference with private employment and that it is a recognized
constitutional theory through which claims can plausibly be brought. The right is heavily factdependent, though, and to overcome any claim of qualified immunity, a plaintiff would have to
plead facts far more similar to Supreme Court precedent than those that Coleman has presented.”).
Plaintiff’s use of Coleman is inapposite here for a number of reasons. First, although the
court is not addressing qualified immunity here, the ultimate holding in Coleman cuts against
Plaintiff because this case does not involve the regulation of business, defense contracting, or
banking–contexts in which the alleged theory under the Fifth Amendment has been previously
applied. Moreover, Plaintiff’s interpretation of Coleman would be at odds with Hill and Duane. In
Hill, the Tenth Circuit explicitly held that that the plaintiff there “did not have a constitutional

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property or liberty interest in his security clearance,” largely because it is under the executive
power’s purview, and not the court’s, to administer access to national secrets. Hill, 844 F.2d at
1411. The court in Duane did not address the liberty or property interest question in its decision,
but it did reaffirm that this court lacks jurisdiction to review the merits of a security clearance
revocation, and limits this court’s review on a revocation as to whether “an agency violated its
own procedural regulation when revoking or denying a security clearance.” Duane, 275 F.3d at
992. A close reading of these cases makes clear that the actionable right recognized in Greene and
later affirmed in Coleman is limited, Coleman, 673 F. App’x at 833, and separate from the holding
in Hill as explained below.
This case is distinguishable from Greene where the court determined that a private
employee who had his security clearance revoked had to be afforded a hearing that comported with
“traditional procedural safeguards of confrontation and cross-examination,” 360 U.S. at 493.
Plaintiff’s second claim does not allege he was not afforded these safeguards, but rather relates to
the process used to deliver his Reconsideration Determination. Also different from Greene is that
Plaintiff’s Complaint does not allege that Plaintiff was a private employee, or that this right is
equally recognizable as to public employees. Accordingly, Greene and the present case as pled are
not alike. And like in Hill, the court holds the cases Plaintiff cites to do not support his claim to
have a constitutional property or liberty interest in his security clearance. 844 F.2d at 1411.
Given this reasoning, the court analyzes Plaintiff’s second claim under Hill and Duane.
Following these cases, the court’s scope of review in decisions revoking or denying a security
clearance is narrow, and limited only as to whether an agency followed its own procedural
regulations. See Duane, 275 F.3d at 993. Considering this standard, the court finds that Plaintiff
has failed to state a plausible claim. In order to state a plausible claim, the Complaint must allege

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that some sort of internal procedural regulation was violated by the relevant agency, which is not
alleged in Plaintiff’s Complaint. See id.; but see also Hill, 844 F.2d at 1412 (holding that the mere
existence of procedural rules by the Department of Defense in the potential revocation of a security
clearance does not inherently attach actionable constitutional rights to them). Even if there was a
lapse that resulted in Plaintiff being unable to timely appeal his Reconsideration Determination,
Plaintiff has not alleged any procedure or regulation that Defendant Vario Jay or anyone else has
violated in forwarding the Reconsideration Determination to the address at Dugway. Accordingly,
Plaintiff’s second claim is not sufficiently pled and is therefore DISMISSED. 3
IV.

CONCLUSION & ORDER

Accordingly, and for the reasons herein, the court hereby GRANTS the Federal
Defendants’ Motion (ECF 39) and GRANTS IN PART Dr. McCann’s Motion (ECF 42). Plaintiff’s
first and third claims against the named defendants in each respective claim present non-justiciable
questions and are DISMISSED without prejudice for lack of subject matter jurisdiction. 4 Plaintiff’s
second claim against Defendant Vario Jay and Doe Defendants is DISMISSED without prejudice
for failure to state a plausible claim. The court also does not grant fees at this time.
DATED this 29 August 2024.

Magistrate Judge Cecilia M. Romero
United States District Court for the District of Utah

Because the court dismisses Plaintiff’s second claim on failure to pled grounds under this reasoning, the court does
not consider Federal Defendants’ other arguments regarding the plausibility of a Bivens claim.

3

Despite Defendants’ request that the dismissal of Plaintiff’s Complaint be with prejudice, claims dismissed for lack
of jurisdiction are typically dismissed without prejudice. See Eagar v. Drake, 829 F. App'x 878, 885 (10th Cir. 2020)
(quoting Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (“Dismissals for lack of jurisdiction
[are] without prejudice because the court, having determined that it lacks jurisdiction over the action, is incapable of
reaching a disposition on the merits of the underlying claims.”)).

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