928 F2d 1136 Faust v. United States

928 F.2d 1136

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Thomas J. FAUST, Plaintiff-Appellant,
UNITED STATES of America, et al., Defendants-Appellees.

No. 89-15826.

United States Court of Appeals, Ninth Circuit.

Submitted March 20, 1991.*
Decided March 25, 1991.

Appeal from the United States District Court for the Northern District of California; No. CV-88-0109-MHP Marilyn H. Patel, District Judge, Presiding.




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Thomas J. Faust appeals1 the district court's dismissal of his civil rights action against federal prosecutors Underhill and Orjales,2 and dismissal of his claims against the United States,3 the Department of Justice ("DOJ"), the Internal Revenue Service ("IRS") and the Maritime Administration ("MARAD"). In this action, Faust sought relief based on the conduct of the defendants regarding the federal financing of tugboats for his partnership and the subsequent prosecution and conviction of Faust for embezzling federal loan funds.4 We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.


* In his complaint, Faust alleged that federal prosecutors Orjales and Underhill instituted criminal proceedings against him in retaliation for a civil action brought by Faust against the United States, thereby violating his civil rights. He also alleged that prosecutors improperly withheld and altered evidence in his criminal proceedings. The district court properly determined that the prosecutors were absolutely immune from liability for damages. See Imbler v. Pactman, 424 U.S. 409, 424 (1976).


To the extent that Faust's allegations challenge the validity of his conviction, it would have been appropriate for the district court to have construed Faust's complaint as a petition for habeas corpus and ruled on it on that basis. See Tucker v. Carlson, No. 88-15568, slip op. 1341, 1345-46 (9th Cir. Feb. 5, 1990) (to extent plaintiff challenges fact or duration of confinement, district court should construe Bivens complaint as petition for habeas corpus); accord Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681-82 (9th Cir.1984). The record indicates, however, that Faust has filed a petition for habeas corpus in the district court. Accordingly, the district court did not err in dismissing Faust's claims against the prosecutors. See id.5



The district court did not err in dismissing Faust's claims against the United States, the DOJ, MARAD, and the IRS pursuant to the Federal Tort Claims Act ("FTCA").


Under the FTCA, a federal agency may not be sued in its own name for tortious liability or injuries arising out of its negligence. Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir.1984). The United States is the only federal governmental body that may be named as a party. Id.; 28 U.S.C. Secs. 1346(b), 2679(a). Because the DOJ, the IRS, and MARAD cannot be sued in their own names under the FTCA, the district court properly dismissed these defendants.


Before the United States may be sued under the FTCA, the plaintiff must file an administrative claim with the appropriate federal agency. 28 U.S.C. Sec. 2675(a); Warren v. Dept. of Interior Bur. of Land Man., 724 F.2d 776, 778 (9th Cir.1984). The United States may then be sued only after the agency has denied the claim or has failed to dispose of the matter within six months. Warren, 724 F.2d at 778. Furthermore, "a claim is presented properly to an agency ... when the agency is given sufficient written notice ... and the claimant places a value on the claim." Avery v. United States, 680 F.2d 608, 610 (9th Cir.1982). A claimant's proper presentation of the claim to the agency is a jurisdictional prerequisite to filing suit under the FTCA. Wright v. Gregg, 685 F.2d 340, 341 (9th Cir.1982).

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Faust did not present a claim to the DOJ, the IRS, or MARAD as required by section 2675(a). Faust nevertheless asserts that an administrative claim filed in a previous suit against MARAD is sufficient notice of the present suit because he signed his name to that claim and because the two lawsuits involve common parties, issues, and facts. Faust's assertion lacks merit. He has brought an entirely new lawsuit that is on his own behalf, names new defendants, and sets forth different claims which arose after the administrative action was filed. Accordingly, the district court properly dismissed the claim for failure to file an administrative claim.



The district court did not err in dismissing Faust's breach of contract claim against the United States.


The United States Claims Court has exclusive jurisdiction over contract claims against the United States that exceed $10,000. 28 U.S.C. Secs. 1346(a)(2), 1491; Hewitt v. Grabicki, 794 F.2d 1373, 1382 (9th Cir.1986). Faust alleges contract-related damages in excess of $360,000. Accordingly, the district court properly dismissed the claim.



The district court did not err in dismissing Faust's claim against the United States for misrepresentation.


The FTCA specifically excludes claims based on deceit and misrepresentation. 28 U.S.C. Sec. 2680(h). Because Faust alleges that he suffered an economic loss because his commercial decisions were based on government misrepresentations, the district court properly dismissed the claim.



Faust contends that the district court erred in denying his request for appointment of counsel. This contention lacks merit. Reviewing for an abuse of discretion, McElyea v. Babbitt, 833 F.2d 196, 199-200 (9th Cir.1987), we hold that the absence of "exceptional circumstances" justified the district court's denial of Faust's motion for appointment of counsel. Wilborn v. Escalderon, 789 F.2d 1328 (9th Cir.1986).



Faust also contends that he was entitled to substitute counsel. We review for an abuse of discretion, United States v. Wagner, 834 F.2d 1474, 1481 (9th Cir.1987), and affirm.


On April 11, 1988, the district court made a tentative ruling to grant the government's motion to dismiss. On April 15, 1988, Faust filed a motion to reconsider the tentative ruling. On April 19, 1988 Faust filed a motion to substitute counsel "for [the] motion to reconsider motion to dismiss only." The district court denied Faust's motion to substitute counsel, and granted the government's motion to dismiss. After granting the government's motion to dismiss, the district court granted Faust's second motion to substitute counsel and Faust was represented by counsel for the remainder of the proceedings.6 Given that all of Faust's claims are meritless, we hold that the district court did not abuse its discretion in denying Faust's motion to substitute counsel.



Finally, Faust contends that the district court erred in denying his motion for an extension of time to file an opposition to the government's motion to dismiss. We review for an abuse of discretion, Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir.1987), and affirm.


Under Rule 6(b), the district court "for cause shown may at any time in its discretion" enlarge the time for a responsive pleading. Fed.R.Civ.P. 6(b). Faust had more than one month to respond to the government's motion to dismiss. In addition, he did not show cause why the district should grant the extension. Furthermore, in denying Faust's motion, the district court stated that "[i]f upon review of all the papers the court determines an additional response is necessary, it will order one before deciding the motion." Moreover, Faust timely filed his motion in opposition to the government's motion to dismiss. Accordingly, the district court did not abuse its discretion in denying Faust's motion to extend time.



The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Faust's request for oral argument is denied


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3


Faust proceeded pro se in the district court. On appeal, he is represented by counsel


Although Faust characterized his civil rights action as one brought under 42 U.S.C. Sec. 1983, the district court construed his pro se complaint liberally, Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir.1988), and treated the action as a Bivens action, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)


Although Faust alleged a violation of 42 U.S.C. Sec. 1985(3) in his complaint, he did not address the issue in district court or on appeal. In any event, because Faust does not allege race or class-based invidious discrimination, he cannot state a claim under section 1985(3). See Bretz v. Kelman, 773 F.2d 1026, 1028 (9th Cir.1985) (en banc) (citing Griffin v. Breckenridge, 403 U.S. 88, 102 (1971))


This court upheld Faust's conviction on two counts of forgery and one count of embezzlement. United States v. Faust, 850 F.2d 575 (9th Cir.1988)


In his complaint, Faust also alleged that John Hunt, an investigator with the Department of Treasury, participated in the alleged withholding and manipulation of evidence in his criminal proceeding. Although Faust states in his "Statement of the Case" that he is appealing the dismissal of the prosecutors and Hunt, in his brief he discusses only the actions of the prosecutors and refers to no misconduct by Hunt. He states only that he gave Hunt some exculpatory documents during Hunt's investigation of Faust's partnership and that the federal prosecutors, an attorney with the Department of Transportation, and a MARAD attorney denied him access to the documents, altered evidence, and maliciously prosecuted him. Given that Faust has not raised on appeal his claims against the attorneys from the Department of Transportation and MARAD, he apparently has not appealed the dismissal of his claims against Hunt. In any event, Faust's vague and conclusory allegations of misconduct by Hunt were insufficient to withstand the government's motion to dismiss. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.1982)


The government filed two motions to dismiss. On May 17, 1988, the court granted the government's motion to dismiss certain claims and defendants under Rule 12(b)(6). Subsequently, the government filed a motion to dismiss defendant Hunt and the remaining claims pursuant to Rule 12(b)(4) & 12(b)(6). At this juncture, Faust filed a second motion to substitute counsel, which the district court granted


On appeal, Faust contends that he "pled all the facts which constitute a violation of 18 U.S.C. Secs. 1961 et seq" and therefore should be allowed to amend his complaint to include these claims. These claims were not addressed by the district court. Absent extraordinary circumstances, this court will not hear issues raised for the first time on appeal. United States v. State of Oregon, 769 F.2d 1410, 1414 (9th Cir.1985). Accordingly, we decline to address these claims