AMES v. UNITED STATES

Citation Codes

Equivalent Citations

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Docket Number

No. 78-1867.

Advocates

William E. Macklin (on brief), Ahl, Halberg Nord, Lakeville, Minn., argued for appellants. John M. Lee, Asst. U.S. Atty. (argued), Andrew W. Danielson, U.S. Atty., and Paul C. Engh, Legal Intern, Minneapolis, Minn., on brief, for appellee.

Judges

Donald Pomery Lay

Acts

Crimes And Criminal Procedure — Racketeering — Crimes — Prohibition Of Illegal Gambling Businesses
Judiciary And Judicial Procedure — District Courts; Jurisdiction — Jurisdiction And Venue — United States As Defendant
Judiciary And Judicial Procedure — Tort Claims Procedure — Particular Proceedings — Definitions
Judiciary And Judicial Procedure — District Courts; Jurisdiction — Jurisdiction And Venue — Civil Rights And Elective Franchise
The Public Health And Welfare — Civil Rights — Generally — Civil Action For Deprivation Of Rights
Judiciary And Judicial Procedure — Tort Claims Procedure — Particular Proceedings — Exceptions
Judiciary And Judicial Procedure — United States Attorneys — Department Of Justice — Duties
Judiciary And Judicial Procedure — United States As Party Generally — Particular Proceedings — Time For Commencing Action Against United States
Internal Revenue Code — Procedure And Administration — General Rules — Application Of Internal Revenue Laws — Authority Of Department Of The Treasury
Internal Revenue Code — Procedure And Administration — General Rules — Application Of Internal Revenue Laws — Internal Revenue Service Oversight Board

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Smart Summary

Factual and Procedural Background

Plaintiff Bertman Ames appealed the dismissal of his civil complaint alleging illegal acts and omissions by agents and employees of the Department of Justice, the Internal Revenue Service, the Federal Bureau of Investigation, and the United States Attorney for the District of Minnesota and his assistant. The alleged misconduct related to Ames' arrest and trial for conducting an illegal gambling business in violation of 18 U.S.C. § 1955. Jurisdiction was asserted under the Federal Tort Claims Act (28 U.S.C. § 1346(b), 2671-2680) and also under 28 U.S.C. § 1343 (the jurisdictional counterpart to 42 U.S.C. § 1983).

The district court dismissed Ames' complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted, pursuant to Fed.R.Civ.P. 12(b)(1) and (6). The Court of Appeals affirmed the district court's judgment, though on somewhat different grounds than those relied upon below.

Legal Issues Presented

Whether jurisdictional or substantive limitations of the Federal Tort Claims Act (particularly 28 U.S.C. § 2680(h) as amended) bar Ames' claims for false arrest, false imprisonment and abuse of process arising from events that occurred prior to March 16, 1974.
Whether jurisdiction may properly be grounded on 28 U.S.C. § 1343 (and by analogy 42 U.S.C. § 1983) where the defendant is the United States and the alleged conduct is by federal officers.
Whether sovereign immunity and/or prosecutorial immunity bar suit against the United States, the United States Attorney and his assistant.
Whether Ames' malicious prosecution claim adequately pleads a causal connection between the activities of FBI and Justice Department employees and the institution of criminal proceedings (the grand jury indictment).
Whether Ames' claim against the Internal Revenue Service is time-barred for failure to file the required administrative claim with the appropriate agency (the Department of the Treasury) under 28 U.S.C. § 2401(b).
Whether the conclusory constitutional/Bivens count states a viable cause of action given the complaint's other deficiencies.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gaudet v. United States, 517 F.2d 1034 (5th Cir. 1975)	Interpreting § 2680(h) as barring claims for false imprisonment, false arrest, malicious prosecution and abuse of process when the relevant acts occurred prior to the 1974 amendment.	Used to support the conclusion that Ames' claims against FBI and DOJ employees are barred because the alleged arrests, confinement and indictment occurred before March 16, 1974.
Solomon v. United States, 559 F.2d 309 (5th Cir. 1977)	That United States Attorneys are not "investigative or law enforcement officers" as defined for purposes of the § 2680(h) amendment, preserving sovereign immunity for certain claims.	Applied to conclude sovereign immunity still bars suit against the United States for actions of United States Attorneys because they are not within the amendment's definition.
Imbler v. Pachtman, 424 U.S. 409 (1976)	Doctrine of prosecutorial immunity protecting prosecutors from civil suits for actions within their prosecutorial functions.	Relied upon to conclude that suit against the United States Attorney and his assistant is barred by prosecutorial immunity, at least insofar as the United States may assert the personal immunities of its agents as a defense.
Norton v. United States, 581 F.2d 390 (4th Cir.), cert. denied, 439 U.S. 1003 (1978)	Discussed in context with prosecutorial immunity and the extent to which sovereign immunity may adopt personal immunities of agents.	Referenced (cf.) as supportive authority concerning the interplay of sovereign immunity and prosecutorial immunity.
Jones v. United States, 536 F.2d 269 (8th Cir. 1976)	Addressing related immunity principles involving federal prosecutions.	Referenced (cf.) to support the court's view on prosecutorial immunity or related defenses.
Rodriguez v. Ritchey, 556 F.2d 1185 (5th Cir. 1977)	Holding that a grand jury indictment breaks the chain of causation for malicious prosecution claims absent allegations such as presentation of false evidence or withholding exculpatory evidence.	Applied to find Ames' malicious prosecution claim deficient because the complaint lacked specific allegations tying FBI or DOJ employees to initiation or procurement of the grand jury indictment.
Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977)	Considered in the context of causation and allegations necessary to sustain a malicious prosecution claim.	Used (cf.) to support the proposition that absent particularized allegations (e.g., false evidence), the grand jury indictment severs causation.
Provincial (Provancial) v. United States, 454 F.2d 72 (8th Cir. 1972)	That an action under the FTCA is barred unless the claimant first presents the claim to the appropriate federal agency and the agency is given an opportunity to consider and finally deny it.	Applied to hold Ames' claim against the Internal Revenue Service barred because no claim was filed with the Department of the Treasury.
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)	Recognition of a cause of action for damages against federal officers for certain constitutional violations (a "Bivens" action).	Referenced to explain that Ames' conclusory constitutional count cannot supply a Bivens claim where the factual allegations do not support liability for the United States or federal officers under the pleaded facts.

Court's Reasoning and Analysis

The court's analysis proceeded in distinct steps, each grounded in statutory text or controlling precedent as cited in the opinion.

Jurisdictional framing: The court acknowledged that Ames asserted jurisdiction under the FTCA and also under 28 U.S.C. § 1343 (analogous to 42 U.S.C. § 1983). The court explained that § 1983 applies only to actions under color of state law and so could not furnish jurisdiction against the United States (a federal defendant). The district court's reliance on § 1983 timeliness rules was therefore erroneous.
FTCA § 2680(h) exception and temporal effect: The court observed that as originally enacted the FTCA excluded claims for false imprisonment, false arrest, malicious prosecution and abuse of process. The Act was amended effective March 16, 1974, to permit recovery for such actions when committed by investigative or law enforcement officers as defined by the amendment. Because the alleged arrest, confinement and indictment occurred prior to March 16, 1974, Ames' claims against FBI and DOJ employees were barred under the pre-amendment exception, and the appellate court relied on Gaudet to support that position.
Scope of the amendment and prosecutorial immunity/sovereign immunity: The amendment's definition of law enforcement officers was noted to be limited to officers empowered to execute searches, seize evidence, or make arrests. The court pointed out that United States Attorneys do not fall within that definition (citing 28 U.S.C. § 547), so the United States retains sovereign immunity with respect to actions based on prosecutorial conduct. Additionally, the court relied on Imbler to conclude that prosecutorial immunity bars suit against the United States Attorney and his assistant to the extent the United States invokes the personal immunities of its agents.
Malicious prosecution claim inadequacy: The court explained the elements of malicious prosecution are triggered by institution of criminal proceedings (here, a grand jury indictment). It identified the actions alleged to show malice (arrest, confinement, prosecution, lien) but found the complaint failed to allege specific conduct by FBI or Justice Department employees preceding the indictment that could be construed as initiating or procuring the indictment. The court emphasized that absent specific allegations—such as presentation of false evidence or withholding exculpatory evidence—the grand jury indictment breaks the causal chain and insulates those employees from tort liability, citing Rodriguez and related authority.
Administrative claim requirement for IRS claim: The court held the claim against the Internal Revenue Service was barred by 28 U.S.C. § 2401(b) because, although Ames filed an administrative complaint with the Department of Justice within two years, he did not file the required claim with the Department of the Treasury (the appropriate agency for the IRS). The court stressed that the appropriate agency must be allowed to consider and finally deny the claim before suit may proceed.
Bivens/constitutional count insufficiency: The court addressed the final count alleging constitutional violations and found it conclusory and devoid of additional factual allegations that would constitute a constitutional violation. Because the same actions could not support common-law tort liability by the United States, they likewise could not support a Bivens constitutional tort claim under the pleaded facts.

Holding and Implications

Holding: The judgment of the district court dismissing Ames' complaint is AFFIRMED.

Implications:

The direct effect is dismissal of Ames' complaint in its entirety: claims against FBI and Justice Department employees for false arrest, false imprisonment and abuse of process were barred by the pre-amendment scope of the FTCA; the malicious prosecution claim failed for lack of particularized allegations connecting federal employees to initiation of the grand jury indictment; the claim against the IRS was barred by failure to present a claim to the Department of the Treasury as required by statute; and the conclusory constitutional/Bivens count did not state a viable claim given the other deficiencies.
No new sweeping legal precedent was announced; the court applied existing statute and precedent (including the 1974 amendment to § 2680(h), prosecutorial immunity under Imbler, and administrative-claim requirements) to the facts of this case.
The opinion clarifies that actions occurring prior to the effective date of the § 2680(h) amendment remain subject to the pre-amendment exception, and that prosecutorial and sovereign immunity continue to operate to bar certain suits against federal prosecutors and the United States under the circumstances described.

Court: United States Court of Appeals for the Eighth Circuit. Panel: Judges Lay and Heaney, and District Judge James H. Meredith (sitting by designation). Decided June 20, 1979. The appellate opinion affirms the district court's dismissal though it identifies different or additional grounds for that affirmance.

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BERTMAN AMES AND GLORIA AMES, APPELLANTS, v. UNITED STATES OF AMERICA, APPELLEE.

LAY, Circuit Judge.

Plaintiff Bertman Ames appeals the dismissal of his complaint alleging illegal acts and omissions of agents and employees of the Department of Justice, the Internal Revenue Service, the Federal Bureau of Investigation and the United States Attorney for the District of Minnesota and his assistant, in connection with Ames' arrest and trial for conducting an illegal gambling business in violation of 18 U.S.C. § 1955. Jurisdiction exists under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671-2680. The district court dismissed the complaint for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b)(1) and (6). We affirm, although on somewhat different grounds than those relied upon by the district court.

Jurisdiction is also asserted under 28 U.S.C. § 1343, the jurisdictional counterpart of the Civil Rights Act of 1871, 42 U.S.C. § 1983. By its very terms, however, section 1983 applies only to actions taken under "color of state law." Since the only defendant here is the United States, the lower court's holding that the action was time barred under rules applicable to section 1983 claims was erroneous.

Plaintiff's complaint against F.B.I. and Department of Justice employees for abuse of process, false arrest and false imprisonment are barred by the Federal Tort Claims Act. As originally enacted the Act excepted any claim against the United States for, inter alia, false imprisonment, false arrest, malicious prosecution and abuse of process. 28 U.S.C. § 2680(h) (amended 1974). Effective March 16, 1974, the Act was amended to allow recovery for such actions committed by investigative or law enforcement officers of the United States Government. 28 U.S.C. § 2680(h), as amended by Act of Mar. 16, 1974, Pub.L. No. 93-253, § 2, 88 Stat. 50. Since the only acts and omissions alleged in plaintiff's complaint upon which liability of F.B.I. and Department of Justice employees conceivably could be based — plaintiff's arrest, confinement and indictment — occurred prior to March 16, 1974, plaintiff's complaint against those employees is barred. Gaudet v. United States, 517 F.2d 1034, 1035 (5th Cir. 1975).

Section 2680(h) currently reads:

The provisions of this chapter and section 1346(b) of this title shall not apply to —

The amendment further limited the liability of the United States to acts or omissions of investigative or law enforcement officers, which the amendment defined as "any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." 28 U.S.C. § 2680(h). Since United States Attorneys are not so empowered, 28 U.S.C. § 547, sovereign immunity still bars suit against the United States. See Solomon v. United States, 559 F.2d 309 (5th Cir. 1977). Furthermore, suit against the United States Attorney and his assistant is barred by the doctrine of prosecutorial immunity, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), at least to the extent the United States may adopt as a defense the personal immunities of its agents. Cf. Norton v. United States, 581 F.2d 390, 395-96 (4th Cir.), cert. denied, 439 U.S. 1003, 99 S.Ct. 613, 58 L.Ed.2d 678 (1978); Jones v. United States, 536 F.2d 269, 271-72 (8th Cir. 1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 735, 50 L.Ed.2d 750 (1977).

Plaintiff's claim for malicious prosecution also fails to state a cause of action against employees of the Department of Justice and Federal Bureau of Investigation. The tort of malicious prosecution is triggered by institution of criminal proceedings, in this case the return of a grand jury indictment. Restatement (Second) of Torts §§ 653(a), 654(2)(b), Comment (c) (1977). The actions alleged to have been done with malice and without probable cause in the malicious prosecution count are Ames' arrest, confinement, and prosecution, and the placing of a lien against his property. The complaint does not allege specific activity by F.B.I. or Justice Department employees preceding the grand jury indictment and subsequent arrest that could be construed as an allegation that those employees initiated or procured the institution of the grand jury indictment. Furthermore, absent any specific allegation, such as the presentation of false evidence or the withholding of evidence, the grand jury indictment breaks any chain of causation linking the employees' activities to the institution of criminal proceedings, thus insulating the F.B.I. and Justice Department employees from tort liability. See Rodriguez v. Ritchey, 556 F.2d 1185, 1193 (5th Cir. 1977), cert. denied, 434 U.S. 1047, 98 S.Ct. 894, 54 L.Ed.2d 799 (1978); cf. Dellums v. Powell, 566 F.2d 167, 192-93 (D.C. Cir. 1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). See also Restatement (Second) of Torts § 653, Comment (d) (1977); W. Prosser, The Law of Torts § 119 (4th ed. 1971).

The complaint against the Internal Revenue Service is barred by 28 U.S.C. § 2401(b). Although an administrative complaint was filed with the Department of Justice within the two year period, no claim was filed with the Department of the Treasury, of which the Internal Revenue Service is a part. See 26 U.S.C. § 7801, 7802. Unless the appropriate agency is given an opportunity to consider and finally deny the claim, suit is barred. Provancial v. United States, 454 F.2d 72, 74 (8th Cir. 1972).

Although the grand jury indictment which preceded Ames' arrest is not mentioned in the complaint, it is a matter of court record in the third division of the United States District Court for the District of Minnesota, which was the forum for Ames' gambling prosecution as well as the present civil suit.

The final count alleges in conclusory fashion that the acts complained of violated Ames' constitutional rights. No allegations of additional activities which would constitute a violation of Ames' constitutional rights are pleaded. Since the actions complained of cannot be the basis for holding the United States liable for common law torts, it follows that they cannot be the basis for its liability under a constitutional or "Bivens" tort theory.

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

The judgment is affirmed.