Yvonne Bohac v. Thomas Walsh

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3432
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Yvonne M. Bohac, *
*
Plaintiff - Appellant, *
*
v. *
*
Thomas M. Walsh; Suelthaus & Walsh; *
First National Bank of the Mid-South; * Appeal from the United States
The Bank of Advance; Missouri * District Court for the Eastern
Department of Economic Development; * District of Missouri.
Salim I. Akbani; Akbani Industries, Inc.; *
Sportswear, Incorporated; By the *
Administrator of the United States of *
America, also known as Small Business *
Administration, *
*
Defendants - Appellees. *
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Submitted: May 13, 2004
Filed: October 25, 2004
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Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.

Yvonne M. Bohac (“Bohac”) and Salim I. Akbani (“Akbani”) were married
from 1982 until May 1997. In 1995, Bohac and Akbani co-signed loan guarantees
of Akbani’s two corporations, Akbani Industries, Inc. and Sportswear, Incorporated.
Bohac later learned that her husband had engaged in bank fraud (check kiting) from
October to December 1994. In 1998, creditors foreclosed on properties of Bohac,
Akbani and Akbani’s corporations. Akbani filed Chapter 7 bankruptcy, but many of
his debts were not dischargeable. Bohac claims she is liable to pay at least
$1,948,767 as a result of signing the loan guarantees.

On November 25, 2002, Bohac filed a complaint against nine defendants: (1)
Thomas M. Walsh, (2) Suelthaus & Walsh, P.C., (3) First National Bank of the Mid-
South, (4) The Bank of Advance, (5) Missouri Department of Economic
Development, (6) Akbani, (7) Akbani Industries, Inc., (8) Sportswear, Incorporated,
and (9) the United States of America, by the Administrator of the Small Business
Administration (“Small Business Administration”). She alleged that each defendant
knew of Akbani’s check kiting activities and failed to warn her, and that their silence
constituted fraud. The district court dismissed the claim against the Small Business
Administration, holding that the United States was entitled to sovereign immunity.
The district court1 dismissed the claims against the rest of the defendants for lack of
subject matter jurisdiction.

We agree with the district court that sovereign immunity bars Bohac’s claim
against the Small Business Administration. As the district court succinctly stated:

Plaintiff’s claim is one for fraud. Fraud is a tort for which only the
Federal Tort Claims Act can potentially provide a cause of action
against the United States and a waiver of the government’s sovereign
immunity. See 28 U.S.C. § 2679(a) and § 1346(b). Section 2679(a)
expressly states that this is so notwithstanding the provision of 15
U.S.C. § 634(b)(1) authorizing the Administrator of the SBA to “sue and
be sued.”

District Court Opinion at 3-4.

1
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.

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 In addition, even if Bohac’s claim was cognizable under the Federal Tort
Claims Act, it is procedurally defaulted because she failed to exhaust her
administrative remedies. Under the Federal Tort Claims Act, a claimant must present
her “claim to the appropriate Federal agency” and the agency must make a final
decision before the claimant may bring an action against the United States. 28 U.S.C.
§ 2675(a). Further, “[a] tort claim against the United States shall be forever barred
unless it is presented in writing to the appropriate Federal agency within two years
after such claim accrues.” 28 U.S.C. § 2401(b). It is undisputed that Bohac failed to
file an administrative claim with the Small Business Administration prior to bringing
suit against the United States. Her claim against the Small Business Administration
is therefore barred.

As to the remaining defendants, the plaintiff has not stated any basis for federal
jurisdiction. In fact, it does not appear that the plaintiff appealed the district court’s
decision to decline to exercise supplemental jurisdiction. To the extent that it was
appealed, we affirm the district court.

The judgment of the district court is therefore affirmed.
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