Saunders v. Bush

United States Court of Appeals,

Fifth Circuit.

No. 92-1962

Summary Calendar.

Charles E. SAUNDERS, Plaintiff-Appellant,

v.

George H.W. BUSH, President and Chief Executive Officer of the
United States of America, et al., Defendants-Appellees.

Feb. 28, 1994.

Appeal from the United States District Court for the Northern
District of Texas.

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

I. BACKGROUND

This appeal concerns the alleged "malicious political

persecution" and malicious prosecution of plaintiff-appellant

Charles E. Saunders ("Saunders"), a pro se litigant, by officers,

agents and/or employees of the United States, in violation of the

Federal Tort Claims Act1 ("FTCA"), the First, Fifth and Eighth

Amendments of the United States Constitution, and 42 U.S.C. §§ 1981

and 1985.

Saunders' suit has its origin in an administrative proceeding

brought against him by the United States Department of Labor

("DOL"). On March 5, 1990, the Acting Administrator of DOL's Wage

and Hour Division filed a complaint with DOL's Office of

Administrative Law Judges, through defendant James E. White,

1
28 U.S.C. § 2671, et seq. (1965 & Supp.1993).

1
Regional Solicitor for DOL's Office of the Solicitor of Labor. The

DOL complaint alleged that Saunders, doing business as American

Shamrock Building Maintenance ("American Shamrock"), violated

certain provisions of the McNamara-O'Hara Service Contract Act2

("McNamara-O'Hara Act") pertaining to classification of employee

wage rates, and calculation of employee work hours and holiday pay.

A formal hearing on the DOL complaint was conducted before an

Administrative Law Judge ("ALJ") on October 30-31, 1991. Defendant

Daniel Curran, an attorney with DOL's Office of the Solicitor,

represented DOL in this hearing. On February 27, 1992, the ALJ

issued a Decision and Order finding no violations of the McNamara-

O'Hara Act by Saunders d/b/a American Shamrock and ordering DOL to

remit all monies withheld from payment under DOL's contract with

Saunders. DOL's Acting Administrator is currently appealing the

ALJ's Decision and Order.

On March 17, 1992, Saunders filed the instant suit, claiming

that the defendants falsely, maliciously and without probable

cause, conspired to bring a claim against him d/b/a American

Shamrock for violations of the McNamara-O'Hara Act.3 Specifically,

Saunders' amended complaint asserts that "[d]efendant White, in

conspiracy with unknown others[,] acted with malice and without

2
41 U.S.C. § 351, et seq.; 29 C.F.R. Parts 4, 6.
3
Saunders filed his original complaint on March 17, 1992.
On May 15, the defendants filed their initial motion to dismiss.
Thereafter, on May 21, Saunders filed an amended complaint. The
defendants responded to Saunders' amended complaint with a second
motion to dismiss, filed June 1. In addressing the defendants'
subsequent motion, the district court ruled that Saunders'
amended complaint was controlling.

2
probable cause in issuing the complaint ... and instigating the

prosecution, ... with the intent to injure and damage [Saunders]."

He further charges that "[d]efendant George H.W. Bush, with

constructive knowledge[,] conspired and acted in concert with the

defendant co-conspirators by giving tacit approval of [DOL's] abuse

of the legal process to injure and damage [Saunders]." Saunders'

amended complaint contains no allegations pertaining to defendant

Lynn Martin, the former Secretary of Labor, and defendant Curran's

role in this matter.

According to Saunders' amended complaint, the defendants

undertook these acts of alleged "malicious persecution" and

malicious prosecution in direct retaliation for a civil rights

complaint previously filed by Saunders against the United States

Department of Housing and Urban Development ("HUD") and former HUD

Secretary Jack Kemp.4 These acts are also alleged to be "in

furtherance and continuation of twenty-one years of harassment,

attempted intimidation, and political persecution [of Saunders]

resulting originally from his "whistle-blowing' concerning racial

discrimination in the United States Air Force ... [and] his

unrelenting quest for social, economic and political equality."

When the defendants moved to dismiss Saunders' suit, the

district court obliged. The court construed Saunders' amended

complaint to charge the defendants with malicious prosecution under

the FTCA and dismissed such claims with prejudice for lack of

4
Saunders initially filed this administrative complaint
against HUD in November, 1989.

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subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). It also

dismissed Saunders' § 1981 and § 1985 claims without prejudice for

failure to state a claim upon which relief can be granted.

Fed.R.Civ.P. 12(b)(6). Rule 11 sanctions were imposed against

Saunders, calculated as a $500 fine, reasonable costs and

attorneys' fees. Saunders filed this timely appeal on November 4,

1992, requesting review of the district court's dismissal of his

claims and of the imposition of Rule 11 sanctions.

II. DISCUSSION

A. Dismissal of FTCA Claims under Rule 12(b)(1)

The district court correctly treated Saunders' malicious

prosecution claims as tort claims under the FTCA. The FTCA creates

a statutory cause of action against the United States for torts

committed by federal officials within the scope of their

employment. 28 U.S.C. § 2671, et seq. The tort of malicious

prosecution, however, is not cognizable under the FTCA. Id. §

2680(h). Moreover, persons seeking recovery under the FTCA must

first present their "claim to the appropriate Federal agency," and

such claim must be "finally denied by the agency" before suit may

be brought in Federal Court. Id. § 2675(a). In light of this law,

the district court correctly dismissed Saunders' malicious

prosecution claims under the FTCA. Reynolds v. United States, 748

F.2d 291 (5th Cir.1984).

B. Dismissal of Bivens, § 1981 and § 1985 Claims on Immunities
Grounds

Saunders' amended complaint charges the defendants with

violating the First, Fifth, and Eighth Amendments as well as § 1981

4
and § 1985 of Title 42.5 Apparently the district court did not

construe Saunders' amended complaint to raise any Bivens claims.

Bivens v. Six Unknown Fed. Agents, 403 U.S. 388, 91 S.Ct. 1999, 29

L.Ed.2d 619 (1971) (recognizing a right implied directly under the

Constitution to recover damages against a federal official for a

violation of a constitutional right). While we find no fault in

the court's construal, we nevertheless, in the interest of

thoroughness, address the dismissal of any Bivens claim. Assuming

without deciding that Bivens claims are cognizable under these

Amendments, we conclude that such claims, as well as his § 1981 and

§ 1985 claims are barred in the present action by the defendants'

absolute and qualified immunities.

Former President Bush enjoys absolute immunity from damage

liability for acts within the " "outer perimeter' " of his official

responsibility. Nixon v. Fitzgerald, 457 U.S. 731, 755, 102 S.Ct.

2690, 2704, 73 L.Ed.2d 349 (1982). Here, the only "act" with which

the President is charged is "giving tacit approval[,]" as "the

president and chief executive officer of the Government of the

United States of America[,]" of the DOL's alleged "abuse of the

5
Saunders' pleading explicitly states that the defendants'
malicious prosecution of the DOL complaint was a form of cruel
and unusual punishment in violation of the Eighth Amendment. The
pleading is less clear as to the bases of Saunders' first and
fifth amendment claims. We glean from his amended complaint,
responsive motions and appellate briefs that Saunders is claiming
that the alleged malicious prosecution violated his fifth
amendment right to equal protection. Based on a combined reading
of the aforementioned documents, it does not seem that Saunders
predicates any recovery or relief on an alleged first amendment
violation. Rather, Saunders seems to be using his first
amendment right to petition the courts for redress as a sword
with which to strike down the defendants immunities defense.

5
legal process to injure and damage plaintiff." This allegation

charges the former President with conduct within the perimeter of

his responsibilities as chief of the executive branch. Therefore,

he is absolutely immune from suit. See Id. at 756, 102 S.Ct. at

2705.

Defendant White is charged with liability for his

"instigat[ion] [of] the [DOL] prosecution[.]" "[O]fficials who are

responsible for the decision to initiate or continue a proceeding

subject to agency adjudication are entitled to absolute immunity

from damages liability for their parts in that decision." Butz v.

Economou, 438 U.S. 478, 516, 98 S.Ct. 2894, 2916, 57 L.Ed.2d 895

(1978). White is entitled to absolute immunity from suit. See Id.

Saunders does not make any allegation as to Defendant

Curran's role in the DOL prosecution. However, the record reflects

that Curran was the DOL attorney who actually prosecuted the

complaint against Saunders at the two day hearing. "[A]n agency

attorney who arranges for the presentation of evidence on the

record in the course of an adjudication is absolutely immune from

suits based on the introduction of such evidence." Id. at 516, 98

S.Ct. at 2916. Curran is absolutely immune from suit. See Id.

Federal officials are accorded qualified immunity from

liability for damages arising from conduct which is not violative

of "clearly established law" of which a reasonable person would

have known. Harlow v. Fitzgerald, 457 U.S. 800, 807, 819, 102

S.Ct. 2727, 2732, 2738, 73 L.Ed.2d 396 (1982); Austin v. Borel,

830 F.2d 1356, 1358-59, 1363 (5th Cir.1987), reh'g denied, en banc,

6
836 F.2d 1346 (5th Cir.1987). Saunders not only fails to allege

any facts indicating that defendant Martin violated clearly

established law, but also fails to make any allegations against

Martin whatsoever.6 Martin is entitled to immunity as well.

C. Rule 11 Sanctions

In previous matters of which the district court took judicial

notice, Saunders' claims against then President Reagan were

dismissed as frivolous on the basis of the President's absolute

immunity. Saunders was warned that sanctions would be imposed if

he filed another frivolous suit. Despite this warning, Saunders

filed yet another frivolous suit, this time against former

President Bush. We find no abuse in the district court's

discretionary imposition of sanctions.

III. CONCLUSION

The district court's judgment is in all respects AFFIRMED.

6
Saunders may be relying on the doctrine of respondeat
superior as a basis for imposing liability on the former
Secretary as well as the former President. However, that
doctrine of vicarious liability is not a permissible basis for
holding these defendants liable. See Abate v. Southern Pacific
Transp. Co., 993 F.2d 107, 111 (5th Cir.1993); cf. Monell v.
Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018,
56 L.Ed.2d 611 (1978).

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