Case: 20-30581 Document: 00516089114 Page: 1 Date Filed: 11/10/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 10, 2021
No. 20-30581
Lyle W. Cayce
consolidated with
Clerk
No. 21-30410
Summary Calendar
Mark Hanna,
Plaintiff—Appellant,
versus
United States of America,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:20-CV-20
USDC No. 2:20-CV-1502
Before Clement, Ho, and Oldham, Circuit Judges.
Per Curiam:*
This consolidated appeal involves two nearly identical lawsuits. Both
lawsuits arose from Plaintiff’s claim under the Federal Tort Claims Act
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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(“FTCA”), in which he alleged that a misrepresentation by a federal docket
clerk in a prior action caused him damages. In the first suit, the district court
(Hicks, C.J.) denied his motion for leave to amend his complaint, denied his
subsequent Rule 60(b) motion for reconsideration of that denial, and
dismissed his FTCA claim for lack of subject matter jurisdiction due to
failure to exhaust his administrative remedies. In the second suit, the district
court (Doughty, J.) dismissed his FTCA claim for lack of subject matter
jurisdiction under the FTCA’s misrepresentation exception. For the
following reasons, we AFFIRM both judgments.
The FTCA provides a limited waiver of sovereign immunity, allowing
suit in federal court only when the plaintiff files an administrative claim with
the appropriate federal agency within two years after such claim accrues, and
the plaintiff either (1) obtained a written denial, or (2) did not receive a
response within six months. See 28 U.S.C. § 2675(a); Price v. United States,
69 F.3d 46, 54 (5th Cir. 1995), on reh’g in part, 81 F.3d 520 (5th Cir. 1996).
Under the FTCA’s misrepresentation exception, the FTCA’s limited waiver
of sovereign immunity does not apply to claims that arise out of alleged
misrepresentations. See 28 U.S.C. § 2680(h); Life Partners Inc. v. United
States, 650 F.3d 1026, 1031 (5th Cir. 2011).
Plaintiff failed to exhaust his administrative remedies. The record
reflects that Plaintiff made two administrative claims—one in 2018, and the
other in 2019. The record also reflects that (a) no administrative agency—
let alone the proper one—ever received his 2018 claim, and (b) he filed his
suit in federal district court prior to receiving a written denial of his 2019
claim or the expiration of six months after filing same.
Moreover, the FTCA’s misrepresentation exception bars Plaintiff’s
FTCA claim. His claim is necessarily predicated on an injury—if there was
one—that arose from an alleged misrepresentation by a federal docket clerk.
2
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This clearly falls within the scope of the FTCA’s misrepresentation
exception, to which the FTCA’s limited waiver of sovereign immunity does
not apply. Life Partners Inc., 650 F.3d at 1031–34.
Finally, the district court did not abuse its discretion in denying
Plaintiff’s Rule 60(b) motion to reconsider its order denying him leave to
amend his complaint.1 Plaintiff initially requested leave to amend his
complaint to add four federal judges—the district judge who dismissed his
§ 1983 lawsuit from 2015, and the three Fifth Circuit judges who affirmed
that decision. His proposed amended complaint sought to assert Bivens
claims against the federal judges for injunctive and declaratory relief. But
these claims have no legal basis; unsatisfied litigants may not collaterally
attack a prior judgment by suing the judges who issued the decision in the
prior case. See, e.g., Lyons v. Sheetz, 834 F.2d 493, 495 (5th Cir. 1987).
* * *
Judgments AFFIRMED; appeals DISMISSED.
1
We review orders denying motions for leave to amend, and orders denying
motions for Rule 60(b) relief, for abuse of discretion. Lampkin v. UBS Fin. Servs., Inc., 925
F.3d 727, 733 (5th Cir. 2019) (appellate review of denial of motion for leave to amend);
Warfield v. Byron, 436 F.3d 551, 555 (5th Cir. 2006) (appellate review of denial of Rule 60(b)
motion).
3