No. 99-20316
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20316
Conference Calendar
ROMELEE HARRIS; HAROLD R. HARRIS,
Plaintiffs-Appellants,
versus
US CUSTOMS SERVICE;
UNITED STATES OF AMERICA,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-1442
--------------------
February 17, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Romelee and Harold Harris (Harrises) appeal the dismissal of
their complaint against the United States Customs Service
(Customs Service) for lack of jurisdiction. The Harrises sued
the Customs Service alleging violations of the Federal Tort
Claims Act (FTCA), the Fourth Amendment, and 42 U.S.C. §§ 1983
and 1988. They did not name the United States of America as a
defendant. The United States was erroneously designated on the
docket sheet as a party-defendant. The motion of the United
States to dismiss it from the appeal is GRANTED.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 99-20316
-2-
The Harrises have not briefed any arguments on appeal
regarding the dismissal of their claims filed under 42 U.S.C.
§§ 1983 and 1988. As this court reviews only those issues
presented to it, these issues are deemed abandoned. See United
States v. Brace, 145 F.3d 247, 255 (5th Cir.)(en banc), cert.
denied, 119 S. Ct. 426 (1998); Yohey v. Collins, 985 F.2d 222,
225 (5th Cir. 1993).
The Harrises argue that the Customs Service, as an offspring
of the Department of Treasury, can be sued eo nominee because a
statute, namely the Internal Revenue Service Reorganization Act
of 1998, Pub. L. No. 105-206, 112 Stat. 689, allows the
Department of Treasury to be sued eo nominee. However, they did
not argue in the district court that this statute permitted the
Customs Service to be sued eo nominee. “‘The Court will not
allow a party to raise an issue for the first time on appeal
merely because a party believes that he might prevail if given
the opportunity to try a case again on a different theory.’”
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999)(quoting Forbush v. J.C. Penney Co., 98 F.3d 817, 822 (5th
Cir. 1996)), cert. denied, 120 S. Ct. 982 (2000). Accordingly,
this issue will not be considered on appeal.
Plaintiffs argue that the magistrate judge erred in
determing that their Fourth Amendment claims are barred by
sovereign immunity. In support of their position, the Harrises
cite to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971);
Butz v. Economou, 438 U.S. 478 (1978); and Davis v. Passman, 442
U.S. 228 (1979). Id. These cases concern the ability of a party
No. 99-20316
-3-
to sue a federal officer individually for violations of the
Constitution and do not address sovereign immunity or the
capacity of a federal agency to be sued. As these cases do not
address whether sovereign immunity bars Fourth Amendment claims,
they provide no aid to the Harrises’s position. Since the
Harrises’ have failed to cite to cases which relate to their
Fourth Amendment claims, this argument has no merit.
The Harrises argue for the first time in their reply brief
that the magistrate judge erred in dismissing their claims with
prejudice because they should be given the opportunity to refile
their action against the appropriate party. We will not consider
this issue because an issue cannot be raised for the first time
in a reply brief. United States v. Prince, 868 F.2d 1379, 1386
(5th Cir. 1989).
This appeal is without arguable merit; it is DISMISSED AS
FRIVOLOUS. See 5th Cir. R. 42.2.
MOTION TO DISMISS GRANTED; DISMISSED AS FRIVOLOUS.