Tenth Circuit: Technical Service Defects Cannot Thwart Merits; APA Review Requires Federal Final Agency Action — Miller v. USDA

Introduction

In Miller v. USDA, No. 24-6252 (10th Cir. Oct. 28, 2025), the United States Court of Appeals for the Tenth Circuit affirmed the Western District of Oklahoma’s dismissal of a pro se plaintiff’s claims arising from his daycare’s disqualification from the Child and Adult Care Food Program (CACFP) and inclusion on the National Disqualified List (NDL). The plaintiff, Marquise Miller, sued the United States Department of Agriculture (USDA), the Oklahoma State Department of Education (OSDE), the Oklahoma CACFP, and two CACFP employees in their individual capacities.

The appeal presented four principal issues:

Whether claims against USDA survive sovereign immunity and meet the pleading requirements under the Federal Tort Claims Act (FTCA) and the Administrative Procedure Act (APA).
Whether claims against state agencies and employees are barred by the Eleventh Amendment, qualified immunity, and failure to allege a constitutional violation.
Whether the district court erred in permitting the State Defendants’ motion to dismiss to proceed despite an initial defect in the certificate of service, and in denying Miller’s motion for entry of default.
Whether the district court abused its discretion by striking Miller’s motion for judicial notice at the Rule 12(b)(6) stage.

The court affirmed across the board, reinforcing several bedrock principles: sovereign immunity constraints on suits against the federal government; the APA’s requirement of federal “final agency action”; the Eleventh Amendment’s bar on suits against states and their agencies; the necessity of plausible factual allegations against individuals to overcome qualified immunity; the disfavoring of defaults where defendants have appeared and “otherwise defended”; and the impropriety of using judicial notice to resolve disputed facts on a motion to dismiss.

Summary of the Opinion

The Tenth Circuit, in a nonprecedential order and judgment, affirmed the dismissal of Miller’s amended complaint. The court held:

As to USDA:
- Section 1983 does not apply to federal agencies and does not waive the federal government’s sovereign immunity.
- Even liberally construing potential negligence theories, the FTCA claim fails because Miller did not sue the proper party (the United States) and did not meet FTCA prerequisites; pro se status does not excuse jurisdictional defects.
- APA claims seeking money damages are barred by sovereign immunity; the remaining APA claims fail for lack of plausible allegations of “final agency action” by USDA.
As to State Defendants:
- The Eleventh Amendment bars official-capacity § 1983 claims against the OSDE/CACFP and their officers.
- Qualified immunity defeats individual-capacity claims against the two employees because the amended complaint does not plausibly allege any constitutional violation.
- The APA does not provide a cause of action against state actors and confers no waiver of state sovereign immunity.
- Miller waived merits arguments challenging the State Defendants’ motion to dismiss by failing to substantively respond in the district court.
Procedural rulings:
- The district court acted within its discretion in allowing the State Defendants to cure a service-certificate defect without a formal extension motion, emphasizing the Federal Rules’ preference for resolving cases on the merits rather than on technicalities (Fed. R. Civ. P. 1; Foman v. Davis).
- Denial of Miller’s motion for entry of default was proper because the State Defendants appeared, timely filed a dispositive motion, and “otherwise defended” the case; defaults are disfavored.
- Striking Miller’s motion for judicial notice at the Rule 12 stage was not an abuse of discretion because the motion sought notice of disputed adjudicative facts and dispositive conclusions.

Analysis

Precedents and Authorities Cited and Their Role

Twombly and Iqbal (Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009)): The court reiterated the plausibility pleading standard—complaints must contain factual matter permitting a reasonable inference of liability, not “unadorned” accusations.
Gorsuch, Ltd., B.C. v. Wells Fargo, 771 F.3d 1230 (10th Cir. 2014): Reaffirmed de novo review of Rule 12(b)(6) dismissals and application of plausibility pleading in the Tenth Circuit.
Hennessey v. University of Kansas Hospital Authority, 53 F.4th 516 (10th Cir. 2022): Clarified standards for de novo review of Rule 12(b)(1) dismissals and sovereign immunity determinations.
James v. Wadas, 724 F.3d 1312 (10th Cir. 2013): Courts liberally construe pro se filings but do not act as the litigant’s advocate; a recurring theme in the panel’s treatment of FTCA and APA shortcomings.
Richison v. Ernest Group, Inc., 634 F.3d 1123 (10th Cir. 2011): Stands for the principle that arguments not raised in the district court are waived on appeal—applied to Miller’s failure to substantively respond to the State Defendants’ motion.
Foman v. Davis, 371 U.S. 178 (1962), and Rule 1: Invoked to emphasize that federal procedure is aimed at just, speedy, inexpensive determination on the merits; courts avoid outcomes driven by “mere technicalities.”
Dennis Garberg & Associates, Inc. v. Pack-Tech International Corp., 115 F.3d 767 (10th Cir. 1997), and Harvey v. United States, 685 F.3d 939 (10th Cir. 2012): Defaults are disfavored; courts can refuse default when a defendant appears and signals intent to defend.
Fed. R. Evid. 201(b)–(d) and State ex rel. Kobach v. U.S. Department of Interior, 72 F.4th 1107 (10th Cir. 2023): Judicial notice is confined to facts not subject to reasonable dispute; taking notice to resolve contested merits issues at pleading stage is improper.

Together, these authorities ground the panel’s rulings on sovereign immunity, pleading standards, procedural fairness, and the disciplined use of judicial notice. Notably, by quoting Rule 1 and Foman, the panel operationalizes a merits-first ethos to reject technical service objections as a basis to avoid adjudicating dispositive motions.

Legal Reasoning

1) Claims against USDA: Sovereign immunity, FTCA prerequisites, and APA final agency action

Sovereign immunity under § 1983: Section 1983 applies to “state actors”; it neither covers federal agencies nor waives the federal government’s immunity. The court thus affirmed dismissal of § 1983 claims against USDA.
FTCA framing and proper defendant: Even construing the pleading liberally as attempting an FTCA claim, the suit failed because Miller did not name the United States as the defendant. The Tenth Circuit underscored that this defect had already been flagged in Miller’s 2021 case (Miller I), so he was on notice of the jurisdictional requirement. Pro se status does not excuse failure to satisfy FTCA’s structural prerequisites, including naming the United States.
FTCA exhaustion and elements: While Miller argued he need not exhaust administrative remedies or that they were “optional,” the panel rejected those assertions and affirmed for the reasons explained by the district court’s November 21, 2024 order. FTCA claims require presentment to the appropriate federal agency and denial (or passage of time) before suit; pleading should contain facts supporting FTCA elements.
APA relief:
- Money damages: Section 702’s waiver is limited; claims for money damages are barred.
- Final agency action: The complaint did not plausibly allege any final USDA action as required for APA review. Miller’s narrative focused on OSDE/CACFP acts and letters, not USDA decisions. Attempts in the appellate brief to attribute inaction to a USDA employee could not salvage the complaint because new allegations cannot be added on appeal and were not pleaded below.

2) Claims against OSDE/CACFP and state employees: Eleventh Amendment, qualified immunity, and APA inapplicability

Eleventh Amendment: Official-capacity § 1983 claims against OSDE/CACFP (state agencies) are barred absent waiver or valid abrogation, neither of which was present.
Qualified immunity: The court affirmed dismissal of individual-capacity claims against the CACFP employees because the amended complaint failed to plausibly allege a constitutional violation—short-circuiting the need to reach “clearly established law.”
APA does not apply to state actors: The APA provides a cause of action for judicial review of federal agency action; it does not apply to states or their employees and does not waive state sovereign immunity.
Waiver of merits arguments on appeal: After the district court extended time, Miller filed only a two-sentence objection to the State Defendants’ motion without argument. The Tenth Circuit deemed merits arguments waived under Richison because he failed to raise them below.

3) Service issues, default, and the spirit of the Rules

Service certificate defect cured; no prejudice: The State Defendants timely filed their Rule 12 motion and mailed it to Miller’s last known address, later filing an amended certificate of service to cure any defect in the original certificate. The panel emphasized Rule 1’s mandate and cited Foman to disapprove resolving cases on “mere technicalities,” especially where the plaintiff had actual notice and no prejudice occurred.
No default where defendants “otherwise defend”: Entry of default is proper only when a party “failed to plead or otherwise defend.” Here, the State Defendants appeared, moved to dismiss, and engaged in the litigation. Defaults are disfavored, and where doubt exists, courts favor resolution on the merits.
Judicial notice: The district court acted within its discretion in striking the motion for judicial notice as premature and improper because it sought notice of disputed adjudicative facts (e.g., that it was “unreasonable” to keep Miller on the NDL). Rule 201 allows notice only of facts not subject to reasonable dispute; such dispositive factual assertions cannot be resolved at the pleadings stage.

Impact

Pro se litigation: The decision underscores that liberal construction does not dilute jurisdictional rules (e.g., naming the United States under the FTCA) nor pleading standards. Pro se litigants must substantively engage with dispositive motions; perfunctory responses risk waiver.
APA challenges in cooperative-federalism programs: When federal programs are administered by state agencies (like CACFP under USDA auspices), plaintiffs must trace their claims to a federal agency’s “final agency action” to invoke the APA. State letters, notices, or actions are not APA-reviewable; attempting to sue state defendants under the APA will fail.
Service technicalities and default practice: The panel’s invocation of Rule 1 and Foman signals a firm preference against leveraging minor procedural missteps (like a certificate-of-service defect) to foreclose merits adjudication absent prejudice. Courts will favor curing defects and deny default where defendants appear and defend.
Qualified immunity screening: The case illustrates that conclusory constitutional allegations against individual state employees will not overcome qualified immunity. Plaintiffs must plead specific facts stating a constitutional violation at the outset.
Judicial notice at the pleadings stage: Parties should not expect to use Rule 201 to secure dispositive adjudications of contested facts on a motion to dismiss. Courts confine Rule 12(b)(6) review to the complaint, incorporated documents, and unquestionably noticeable facts.

Complex Concepts Simplified

Sovereign immunity: The government cannot be sued unless it consents. Section 1983 does not apply to federal agencies and does not waive the United States’ immunity.
Federal Tort Claims Act (FTCA): The FTCA is a limited waiver allowing certain tort suits against the United States for acts of federal employees. The United States must be named as the defendant, and the claimant must first present the claim to the relevant federal agency and wait for denial or a statutory period before filing suit (administrative exhaustion).
Administrative Procedure Act (APA) and “final agency action”: The APA allows judicial review of final actions by federal agencies that determine rights or obligations and have legal consequences. Actions by state agencies administering federal programs are not reviewable under the APA. Claims for money damages are not available under the APA’s waiver.
Eleventh Amendment: Bars suits in federal court against states and their agencies absent consent or valid congressional abrogation. Official-capacity claims for damages are typically barred.
Qualified immunity: Shields government officials from liability for civil damages unless the plaintiff plausibly alleges a violation of a constitutional right that was clearly established at the time. Courts often dismiss at the pleading stage if the complaint lacks specific facts showing a constitutional violation.
Waiver vs. forfeiture on appeal: Arguments a party intentionally relinquishes or fails to raise in the district court are generally not considered on appeal. A perfunctory or non-substantive response may result in waiver.
Judicial notice (FRE 201): Courts can accept as true facts not subject to reasonable dispute (e.g., dates, contents of public records) but cannot use judicial notice to resolve contested facts or reasonable inferences at the motion-to-dismiss stage.
Default (Rule 55): Default is appropriate only when a defendant fails to plead or otherwise defend. If a defendant appears and files a motion to dismiss, default is generally improper. Courts disfavor defaults and favor decisions on the merits.
Rule 1’s “spirit”: The Federal Rules aim for just, speedy, and inexpensive resolutions on the merits. Courts avoid dismissals based on technicalities where no prejudice results and where parties have substantially complied.

Practice Pointers and Litigation Guidance

If asserting an FTCA claim, name the United States as the sole defendant and plead administrative presentment and timing under 28 U.S.C. § 2675(a).
When invoking the APA, identify the specific federal “final agency action” (who made it, when, and how it determines rights/obligations). Actions by state partners are not APA-reviewable.
Against state agencies, assess Eleventh Amendment immunity; damages claims in official capacity are typically barred. Consider Ex parte Young for prospective relief against state officers for ongoing federal-law violations, but plead with specificity.
To overcome qualified immunity, plead specific facts showing a constitutional violation; avoid conclusory statements. Research whether the right was clearly established in your circuit.
Respond substantively to motions to dismiss; failure to engage on the merits risks waiver on appeal.
Do not rely on technical service defects to avoid responding to a dispositive motion. Courts may permit curative filings and will ask whether you were prejudiced.
Use judicial notice narrowly: public records’ existence may be noticeable, but disputed factual propositions or evaluative conclusions (e.g., reasonableness) are not.

Conclusion

Miller v. USDA is a comprehensive reaffirmation of foundational civil procedure and administrative law doctrines in the Tenth Circuit. The panel’s message is twofold. On the merits, sovereign immunity, the FTCA’s structural prerequisites, the APA’s “final federal agency action” requirement, and qualified immunity set firm outer boundaries for suits challenging state-administered federal programs such as CACFP. On procedure, the court emphasizes that litigation should not be derailed by curable technical defects in service, defaults are disfavored when defendants defend, and judicial notice cannot be used to adjudicate disputed facts at the pleading stage.

Although issued as a nonprecedential order and judgment, the decision offers persuasive guidance: parties must aim their APA challenges at identifiable federal decisions, satisfy jurisdictional and pleading thresholds with specificity, and prosecute cases on the merits rather than by exploiting technical missteps. For pro se litigants in particular, the case is a cautionary tale—liberal construction does not substitute for compliance with jurisdictional rules, substantive pleading, and timely, substantive responses to dispositive motions.

Finally, the court’s explicit reliance on Rule 1 and Foman’s “no technicalities” ethos signals continued judicial commitment to substance over form—especially where, as here, the record demonstrates notice, participation, and an absence of prejudice from curable service defects.

Note: The Tenth Circuit designated this as an “Order and Judgment,” stating it is not binding precedent except under law-of-the-case, res judicata, and collateral estoppel, but it may be cited for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.