FILED
                                                                       United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                           Tenth Circuit

                             FOR THE TENTH CIRCUIT                           October 19, 2020
                         _________________________________
                                                                           Christopher M. Wolpert
                                                                               Clerk of Court
MICHAEL PAUL EAGAR,

      Plaintiff - Appellant,

v.                                                          No. 20-4057
                                                    (D.C. No. 4:19-CV-00061-DN)
DENNIS DRAKE; JAMES EARDLEY;                                  (D. Utah)
ALAN GARDNER; JAMES CRISP,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

Before MATHESON, KELLY, and EID, Circuit Judges. **
                 _________________________________

      Michael Paul Eagar, appearing pro se, appeals the district court’s dismissal of

his takings and trespass claims against three former county-government officials and

a former federal employee. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm the judgment of the district court insofar as it dismisses the action, but, at the

urging of appellee James Crisp, we remand to the district court to modify the

dismissal of the takings and trespass claims against Crisp to be without prejudice.


      *
         This order and judgment is not binding precedent, except under the doctrines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.
       **
          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
ordered submitted without oral argument.
                                              I

         This is the second case that Eagar has filed against the defendants-appellees,

three former members of the Board of County Commissioners of Washington

County, Utah (appellees Dennis Drake, James Eardley, and Alan Gardner, hereinafter

referred to as the “Commissioners”) and Crisp, a retired U.S. Bureau of Land

Management (“BLM”) employee. The first case was initiated in April 2018 in the

U.S. District Court for the District of Utah, Central Division. Eagar asserted

regulatory-taking and trespass claims against the Commissioners and Crisp, alleging

that the value of his family’s mining claims was diminished by creation of the Red

Cliffs Desert Reserve in 1996 and the Red Cliffs National Conservation Area in

2009.1

         The district court dismissed Eagar’s first suit on two grounds. First, it

determined that Eagar’s claims against the Commissioners were time barred under

the operative statute of limitations. ROA at 98, 113. Second, it concluded that it

lacked jurisdiction over Eagar’s claims against Crisp because under 28 U.S.C.

§§ 1346(a)(2) and 1491(a)(1), such claims, when they exceed $10,000, can be



         1
         Crisp moves for us to take judicial notice of certain documents from Eagar’s
first case. Most of those documents, however, need not be considered to resolve this
appeal, and the documents that we have relied on are already “included in the record
on appeal, so judicial notice is not necessary.” Matias-Martinez v. Williams, No. 20-
1249, 

, at *1 n.1 (10th Cir. Sept. 17, 2020) (unpublished
disposition cited for persuasive value pursuant to 10th Cir. R. 32.1); see ROA at 96–
107, 140–51 (magistrate judge’s report and recommendation);

(district court’s memorandum decision and order). Accordingly, Crisp’s motion is
denied as moot.
                                              2
brought only in the Court of Federal Claims.

Eagar did not appeal the

dismissal of his first suit.

        On June 28, 2019, Eagar initiated the present suit. As he did in his first case,

Eagar alleged that the Commissioners and Crisp committed trespass and effected a

taking in violation of the Fifth Amendment by diminishing the value of his mining

claims through creation of the Red Cliffs Desert Reserve and the Red Cliffs National

Conservation Area. Yet unlike before, this time Eagar brought his claims in state

court—specifically, the St. George, Utah Fifth District Court. Notwithstanding

Eagar’s attempt to select a new forum, Crisp removed the case to the U.S. District

Court for the District of Utah, Central Division pursuant to 28 U.S.C. § 1442, which

provides for removal of any “civil action . . . that is commenced in a State court and

that is against or directed to . . . any officer (or any person acting under that officer)

of the United States or of any agency thereof, in an official or individual capacity, for

or relating to any act under color of such office.”

case was

assigned to U.S. District Judge David Nuffer, who had presided over Eagar’s first

case.

        The district court again dismissed Eagar’s suit, this time on four grounds.

First, it determined that claim preclusion barred Eagar’s claims against the

Commissioners. ROA at 278. Second, it concluded that issue preclusion prevented

relitigation of the determination that Eagar’s takings and trespass claims against




                                             3
Crisp had to be brought in the Court of Federal Claims.

Third, it decided,

in the alternative, that Eagar’s takings and trespass claims against Crisp were barred

by the statute of limitations prescribed by 28 U.S.C. § 2501.

Fourth, it

opined that, unlike before, Eagar had possibly brought a claim against Crisp under

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 

(1971).3 But it reasoned that a takings claim is not cognizable under Bivens, that any

Bivens claim would be untimely under the applicable statute of limitations, and that

Crisp was entitled to qualified immunity in any event. ROA at 287–89.

      Eagar now appeals from the dismissal of his suit.

                                           II

      We review de novo a district court’s order granting dismissal under Rule

12(b)(6), “accept[ing] the facts alleged in the complaint as true and view[ing] them in

the light most favorable to the plaintiff.” Mayfield v. Bethards, 

, 1255


      2
         In its analysis, the district court treated Eagar’s takings and trespass claims
against Crisp as a single takings claim. Compare ROA at 277 (explaining that Eagar
“once again alleg[es] takings and trespass causes of action” “against County
Defendants and James Crisp”), with

81 (“The focus of [Eagar’s] pro se
complaint[] is the claim that Defendants violated Plaintiff’s rights under the Fifth
Amendment of the United States Constitution by allegedly taking Plaintiff’s
unpatented mining claims without providing any compensation to Plaintiff.”), and

94 
(“The takings claim against Defendant Crisp is dismissed with prejudice. The
clerk is directed to close this case.”). Eagar does not maintain that the district court
erred by combining these claims together and has therefore waived any challenge on
such grounds. See Toevs v. Reid, 
685 F.3d 903
, 911 (10th Cir. 2012) (“Arguments
not clearly made in a party’s opening brief are deemed waived.”).
       3
         In Bivens, the Supreme Court “approved a judicially-implied cause of action
allowing individuals to seek damages for unconstitutional conduct by federal
officials.” Big Cats of Serenity Springs, Inc. v. Rhodes, 
843 F.3d 853
, 859 (10th Cir.
2016).
                                           4
(10th Cir. 2016). To withstand dismissal, “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)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”
 Id.

       Our review of 
a district court’s order granting dismissal under Rule 12(b)(1)

for lack of subject matter jurisdiction is also de novo when, as here, the district court

dismisses the matter without taking evidence. Safe Streets All. v. Hickenlooper, 
859

F.3d 865
, 877 (10th Cir. 2017). In the absence of evidence-taking, the allegations in

the complaint must be accepted as true.
 Id. at 878. 
Because “[f]ederal courts are

courts of limited jurisdiction, possessing only that power authorized by Constitution

and statute,” subject matter jurisdiction “must be established in every cause under

review in the federal courts.”
 Id. (internal quotation marks 
omitted) (quoting Pueblo

of Jemez v. United States, 
790 F.3d 1143
, 1151 (10th Cir. 2015)). “The ‘burden of

establishing’ a federal court’s subject matter jurisdiction ‘rests upon the party

asserting jurisdiction.’”
 Id. (quoting Pueblo of 
Jemez, 790 F.3d at 1151
).

                                            III

                                             A

       As an initial matter, the Commissioners and Crisp argue that Eagar has waived

any challenge to the grounds upon which the district court ruled. See Comm’rs Br. at

7; Crisp Br. at 11. We agree.

                                             5
      An appellant’s opening brief must contain “appellant’s contentions and the

reasons for them, with citations to the authorities and parts of the record on which the

appellant relies.” Fed. R. App. P. 28(a)(8)(A). Thus, we have consistently held that

“[a]rguments not clearly made in a party’s opening brief are deemed waived.” Toevs

v. Reid, 
685 F.3d 903
, 911 (10th Cir. 2012). This rule “applies equally to pro se

litigants.” Garrett v. Selby Connor Maddux & Janer, 
425 F.3d 836
, 841 (10th Cir.

2005) (internal quotation marks omitted) (quoting Anderson v. Hardman, 
241 F.3d

544
, 545 (7th Cir. 2001)). While we liberally construe a pro se litigant’s filings,

United States v. Pinson, 
584 F.3d 972
, 975 (10th Cir. 2009), we “cannot take on the

responsibility of serving as [his] attorney in constructing arguments and searching the

record,” 
Garrett, 425 F.3d at 840
.

      Below, the district court ruled primarily on the basis of preclusion,

determining that claim preclusion barred Eagar’s claims against the Commissioners

and that issue preclusion barred all except Eagar’s Bivens claim against Crisp. ROA

at 278, 284, 287. Yet in his briefs before this court, Eagar does not mention the

subject of preclusion. Rather, he restates the allegations contained in his district

court filings and argues that he should prevail on the merits of his claims. In so

doing, Eagar has failed to explain why the district court’s legal conclusions were

erroneous. Any challenge to the district court’s preclusion rulings is waived.




                                            6
      Eagar likewise identifies no purported errors in the district court’s Bivens

analysis. 4 On this score, the district court dismissed Eagar’s claim for three

independent reasons: a takings claim is not cognizable under Bivens, any Bivens

claim is barred under the applicable statute of limitations, and Crisp is entitled to

qualified immunity.
 Id. at 287–89. 
Eagar does not contest any of these

determinations. Instead, he merely states that a “violation of [his] Fifth Amendment

Constitutional Rights” occurred. Aplt. Br. at 4; see also
 id. at 2 
(identifying

“Violation of the Plaintiffs [sic] Constitutional 5th Amendment Rights” as an issue

on appeal). Far more is required, even of a pro se litigant, to disturb the judgment

below. Because Eagar does not identify any specific legal errors in the district

court’s Bivens analysis, he has also waived any challenge to that ruling.

                                            B

      Although Eagar fails to meaningfully contest the reasoning employed by the

district court, he offers two alternative grounds, not addressed by the district court,

for reversing the judgment below: improper removal from state court and judicial

bias. 5 Each is considered in turn.


      4
         The district court opined that “it seems a stretch too far to construe the
allegations of Mr. Eagar’s Complaint as alleging any claim against Defendant Crisp
as arising under Bivens,” ROA at 287, but nevertheless proceeded to analyze the
merits of such a claim, see
 

87–94. 
Like the district court, we do not decide
whether Eagar in fact raised a Bivens claim against Crisp.
       5
         Eagar raised these challenges in several filings below, but he did so only
briefly each time, and he never moved for a remand or for Judge Nuffer to recuse
himself. See ROA at 184–86, 188, 208, 213, 229–32, 247, 272, 274. In these
circumstances, Eagar may have waived his challenges. See United States v. Ray, 
899
F.3d 852
, 862 n.4 (10th Cir. 2018) (“[A]rguments made in a cursory manner . . . are
                                            7
       First, Eagar maintains that his present suit was improperly removed from state

court because “the proper jurisdiction should . . . be the 5th district court in St.

George, Utah.” Aplt. Br. at 3. This argument has some force. Here, the district

court determined it lacked subject matter jurisdiction over Eagar’s takings and

trespass claims against Crisp. See ROA at 282–84. And generally, a removed case

must be remanded when the district court lacks subject matter jurisdiction. That is

undoubtedly true with respect to the type of removal at issue here—removal pursuant

to 28 U.S.C. § 1442(a)(1). As we have explained, “[a]n inquiry into the propriety of

removal under § 1442(a)(1) encompasses a subject matter jurisdiction determination

since removal under that section is predicated . . . on the averment of a defense

grounded in federal law.” Dalrymple v. Grand River Dam Auth., 
145 F.3d 1180
,

1185 (10th Cir. 1998) (citing Mesa v. California, 
489 U.S. 121
, 136 (1989)).

Moreover, a separate statutory provision, 28 U.S.C. § 1447, requires that “[i]f at any

time before final judgment it appears that the district court lacks subject matter

jurisdiction, the case shall be remanded.”
 Id. § 1447(c). 6
       Our decision in Fent v. Oklahoma Water Resources Board, 
235 F.3d 553 
(10th

Cir. 2000), however, makes clear that a remand is not necessary in these

circumstances. In many respects, Fent is quite similar to the present case. Just like

waived.”); see also, e.g., United States v. Nickl, 
427 F.3d 1286
, 1297 (10th Cir. 2005)
(“Normally, a party alleging judicial bias should move for recusal . . . .” (emphasis
added)). The Commissioners and Crisp, however, “do[] not argue [Eagar] waived
his present challenge, and, accordingly, ha[ve] waived the waiver.” United States v.
Heckenliable, 
446 F.3d 1048
, 1049 n.3 (10th Cir. 2006).
       6
         28 U.S.C. § 1447 applies “[i]n any case removed from a State court,”
 id.
§ 1447(a), including 
cases removed pursuant to § 1442, see
 id. § 1447(d).
                                             8
this case, Fent involved a suit brought against both a federal defendant (the federal

government itself) and a number of nonfederal defendants.
 Id. at 554. 
And just like

the federal defendant here, the federal defendant in Fent removed pursuant to

§ 1442(a)(1) and put forward a defense based on lack of jurisdiction—specifically,

that the court lacked jurisdiction because federal sovereign immunity had not been

waived.
 Id. at 555, 558. 
Even though we agreed that the district court lacked

jurisdiction over the claim against the federal defendant, see
 id. at 557, 
we

determined § 1442(a)(1)’s jurisdictional requirement was satisfied
, id. at 555. 
For

purposes of § 1442(a)(1), it was enough that the defense claimed was a federal one,

see
 id., and thus the 
federal defendant “properly removed th[e] action on the basis of

a valid assertion of [federal] sovereign immunity,”
 id. at 557. 
So too here, Crisp

properly removed this action on the basis of a federal statutory defense.

      To be sure, in Fent we also acknowledged that § 1447(c) can require remand

for lack of jurisdiction.
 Id. But remand under 
§ 1447(c) was necessary only if the

district court lacked jurisdiction over the other defendants in the suit. See
 id. at 558
(“[T]he controlling question under § 1447(c) is whether the district court had subject

matter jurisdiction over the case . . . .” (emphasis added)). Because the other

defendants were states who asserted their Eleventh Amendment immunity, remand

indeed proved necessary in Fent.
 Id. at 559. 
Here, by contrast, the district court did

have jurisdiction over the rest of the suit, for Eagar’s Fifth Amendment takings claim

against the Commissioners raised a federal question. See Knick v. Twp. of Scott, 
139

S. Ct. 2162
, 2167 (2019). The district court was therefore correct to dismiss the

                                            9
trespass and takings claims against Crisp for lack of jurisdiction rather than remand

the entire case to the state court.

       Turning to Eagar’s second argument, Eagar contends that “Judge Nuffer

clearly demonstrated prejudice against [Eagar],” Reply Br. at 1, by “represent[ing]

the [Commissioners and Crisp] in violation of his Oath of Office to the Constitution,”

Aplt. Br. at 4. “A judge must recuse himself ‘if sufficient factual grounds exist to

cause a reasonable, objective person, knowing all the relevant facts, to question the

judge’s impartiality.’” United States v. Nickl, 
427 F.3d 1286
, 1298 (10th Cir. 2005)

(quoting United States v. Pearson, 
203 F.3d 1243
, 1277 (10th Cir. 2000)). Here,

Eagar provides no reason to suspect that Judge Nuffer was anything but a

disinterested, evenhanded adjudicator. All he musters in support of his claim are

rulings that didn’t go his way. See ROA at 296 (“Judge Nuffer should have

remanded the case to a court of proper jurisdiction, but instead, in fact, acted as ‘legal

counsel’ for the [Commissioners and Crisp], after which he dismissed the case with

prejudice. . . . Judge David Nuffer then remanded this case back to his United States

Court and illegally denied a hearing, but continued to represent the Defendants in

violation of his Oath of Office to the Constitution.”). “[A]dverse rulings cannot in

themselves form the appropriate grounds for disqualification.” United States v.

Wells, 
873 F.3d 1241
, 1252 (10th Cir. 2017) (internal quotation marks omitted)

(quoting 
Nickl, 427 F.3d at 1298
). Accordingly, Eagar’s judicial bias challenge fails.




                                           10
                                            C

       A final issue must be addressed. Crisp points out that the dismissal of the

takings and trespass claims against him was with prejudice, even though it was based

on lack of jurisdiction. Crisp Br. at 7 n.2, 25; see ROA at 294. “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.” Brereton v. Bountiful City Corp., 
434 F.3d 1213
, 1218

(10th Cir. 2006). 7 It is therefore “our duty to correct a district court disposition

erroneously entered ‘with prejudice’ on jurisdictional grounds.”
 Id. We fulfill that
duty here by remanding to the district court to modify its dismissal accordingly.

                                            IV

       For the foregoing reasons, we AFFIRM the district court’s judgment insofar as

it dismisses the action, but REMAND to the district court to modify the dismissal of

the takings and trespass claims against Crisp to be without prejudice.


                                             Entered for the Court


                                             Allison H. Eid
                                             Circuit Judge

       7
         Notably, “even a dismissal without prejudice [on jurisdictional grounds] will
have a preclusive effect on the [relevant] issue in a future action.” 
Brereton, 434
F.3d at 1218
–19. This case is illustrative. Even though the dismissal of Eagar’s first
action against Crisp was without prejudice, the district court held that issue
preclusion barred Eagar from relitigating the jurisdictional question in this suit. ROA
at 282; see 
Brereton, 434 F.3d at 1219 
(explaining that “[t]he preclusive effect” of a
dismissal without prejudice on jurisdictional grounds “is one of issue preclusion
(collateral estoppel) rather than claim preclusion (res judicata)”).
                                            11