OpenJurist

846 F2d 494 Tallman v. W Reagan

846 F.2d 494

21 Soc.Sec.Rep.Ser. 541, Unempl.Ins.Rep. CCH 17984.3
Gregg A. TALLMAN, Appellant,
v.
Ronald W. REAGAN, Ed Meese, Otis Bowen and Richard Turner, Appellees.

No. 87-1586.

United States Court of Appeals,
Eighth Circuit.

Submitted Dec. 17, 1986.
Decided May 10, 1988.

Gregg A. Tallman, pro se.

John Beamer, Asst. U.S. Atty., Des Moines, Iowa, for appellees.

Before McMILLIAN, FAGG and BOWMAN, Circuit Judges.

PER CURIAM.

1

Gregg A. Tallman appeals pro se from a final order entered in the District Court1 for the Southern District of Iowa dismissing his complaint. For the reasons discussed below, we affirm the judgment of the district court.

2

Tallman's action arises out of his application in 1982 for Social Security disability benefits after he was injured in an industrial accident. On August 20, 1986, Tallman filed the instant complaint claiming that Ronald Reagan, Otis Bowen, Ed Meese, Richard Turner,2 and the United States government deprived Tallman of his constitutional rights and his rights under the Social Security Act. Tallman argued, that at that point, several years had passed since his disability claim was initially filed and he had not yet been awarded benefits, due to appellees' negligence in handling his application. Tallman alleged that the delay in receiving benefits caused his injury to worsen, and he sought actual and punitive damages in the amount of ten million dollars.

3

On November 14, 1986, the district court dismissed Tallman's complaint. Tallman subsequently filed a "motion to amend judgment" (November 18, 1986), a "motion for continuance" (December 8, 1986), and a "motion for judgment" (April 2, 1987). On April 7, 1987, the same district court entered a final judgment in Tallman's disability case, reversing the decision of the Secretary of Health and Human Services to deny Tallman disability benefits and ordering the Secretary to pay Tallman benefits past due. On May 7, 1987, the court denied Tallman's post-judgment motions in the instant action, and this appeal followed.

4

A complaint should not be dismissed for failure to state a claim " 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Kaylor v. Fields, 661 F.2d 1177, 1181 (8th Cir.1981) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). As we read Tallman's pleadings, we understand his complaint as an attempt to state a Bivens-type3 constitutional tort action against the individual appellees, and an action under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2674, against the government.

5

Tallman's complaint, however, is deficient in several respects. Only federal officials who actually participate in alleged violations are subject to a Bivens-type suit. Laswell v. Brown, 683 F.2d 261, 268 (8th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983). Tallman did not allege that appellees Reagan, Meese or Bowen actually participated in, nor how appellee Turner may have contributed to, the alleged violations. Tallman's complaint alleged at the most gross negligence on the part of appellees, which does not implicate the due process clause. See Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986). The Social Security Act, 42 U.S.C. Sec. 405(h), precludes a FTCA action "to recover on any claim arising under this subchapter." Cf. Marin v. HEW, Health Care Fin. Agency, 769 F.2d 590, 592 (9th Cir.1985) (FTCA action for damages caused by negligently tardy processing of cost reports barred), cert. denied, 474 U.S. 1061, 106 S.Ct. 808, 88 L.Ed.2d 783 (1986). Finally, we note that in Heckler v. Day, 467 U.S. 104, 104 S.Ct. 2249, 81 L.Ed.2d 88 (1984), the Supreme Court held that Congress, in enacting the Social Security Act, had repeatedly rejected the "imposition of mandatory deadlines on agency adjudication of disputed disability claims." Id. at 119, 104 S.Ct. at 2257.

6

Although we are sympathetic to Tallman in that it took several years before he was finally awarded benefits, his complaint in the instant action failed to state a claim upon which relief could be granted.

7

Accordingly, the judgment of the district court is affirmed.

1

The Honorable William C. Stuart, Senior United States District Judge for the Southern District of Iowa

2

The record indicates that Assistant United States Attorney Richard Turner represented the Secretary of Health and Human Services in Tallman's action for judicial review of the Secretary's decision to deny benefits

3

In 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 Supreme Court recognized a cause of action for damages against federal officials for violation of one's fourth amendment rights. In Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), this right was extended to actions arising under the due process clause of the fifth amendment