John L. Jensen v. Harold E. Brokaw, Chief, Financing Division Agent, Small Business Administration

John L. Jensen filed a pro se Bivens1 suit against Harold E. Brokaw, an employee of the Small Business Administration (SBA). Jensen alleged that Brokaw denied him due process when he approved a loan for construction of a rival motel without first notifying Jensen and giving him an opportunity to comment. The district court2 dismissed the suit under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. This appeal followed. We affirm the district court.

We review de novo the dismissal of a complaint for failure to state a claim. See Alexander v. Peffer, 993 F.2d 1348, 1349 (8th Cir. 1993). Jensen's due process argument centers around the rival motel's adverse impact on the value of his former motel. Procedural due process, however, comes into play only when "there has been a deprivation of life, liberty, or property within the meaning of the Fifth or Fourteenth Amendment." Schneider v. United States, 27 F.3d 1327, 1332 (8th Cir. 1993). We agree with the district court that Jensen did not state a Bivens claim. See O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 789 (1980) (Fifth Amendment does not apply to indirect adverse effects of governmental action); A.B.C. Bus Lines, Inc. v. Urban Mass Transp. Admin., 831 F.2d 360, 362 (1st Cir. 1987) (per curiam) (" 'freedom from competition is not constitutionally protected' " (quoted case omitted)).3

Accordingly, we affirm.