Brown v. U.S.

• Decision Date: 10 August 1981
• Docket Number: No. 80-1163,80-1163
• Citation: 653 F.2d 196
• Parties: R. D. BROWN, Plaintiff-Appellant, v. The UNITED STATES of America, Defendant-Appellee. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 196

653 F.2d 196

R. D. BROWN, Plaintiff-Appellant, v. The UNITED STATES of America, Defendant-Appellee.

No. 80-1163.

United States Court of Appeals, Fifth Circuit.

Unit A

Aug. 10, 1981.

Fillmore & Camp, H. Dustin Fillmore, Randy J. Hall, Fort Worth, Tex., for plaintiff-appellant.

Judith A. Shepherd, Asst. U. S. Atty., Dallas, Tex., for defendant-appellee.

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

Before RUBIN and GARZA, Circuit Judges, and SUTTLE, ^* District Judge.

ALVIN B. RUBIN, Circuit Judge:

This is an action under the Federal Tort Claims Act (FTCA) against the United States. R. D. Brown seeks to recover damages on the ground that an F.B.I. agent, by giving false testimony to a state grand jury and two state criminal juries, maliciously prosecuted Brown and violated Brown's fourth and fifth amendment rights. The district court dismissed the complaint, finding that the agent acted without malice; the court failed to discuss Brown's constitutional claims. We affirm, holding that, as to the malicious prosecution claim, the district court committed no error in finding that Brown failed to prove that the agent acted with malice. We also conclude that Brown's constitutional claims are not cognizable under the FTCA.

I.

In July, 1973, Texas State and Federal Deposit Insurance Corporation bank examiners discovered a check "kite" by a depositor in the First State Bank at Vernon, Texas. ¹ The bank was closed and placed in receivership. Because the "kite" was used to finance the purchase of cotton, and the cotton later increased dramatically in value, the amounts recovered from the perpetrators of the "kite" and from the bank's assets were sufficient to avert any loss to the F.D.I.C. or to the bank's stockholders.

Lee Stephens, an F.B.I. agent supposedly expert in accounting and banking matters, was assigned to investigate the possibility that violations of federal banking laws had occurred. He arrived in Vernon after the bank had been closed, and, during the investigation, supervised the activities of a staff of thirty-eight, including F.B.I. agents and personnel of the Texas Department of Safety.

A federal grand jury returned an indictment against the kite-flyers and they were later convicted. The case against Mr. Brown, president of the bank, was also presented to a federal grand jury but it returned no indictment. A state grand jury investigated the matter. In accordance with the federal policy of cooperation with state law enforcement officials, Mr. Stephens testified before that grand jury. After an indictment was returned, Stephens later testified in each of the criminal trials that resulted. Mr. Brown was acquitted in each.

II.

Recognizing that those who act for the State are fallible, that public servants may in the course of their duties injure others, and that the polity should redress such harm, Congress partially waived the United States' sovereign immunity from tort claims by enacting the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. The statute, however, continued to assert immunity for certain intentional torts, including malicious prosecution. See Federal Tort Claims Act, ch. 646, § 2680(h), 62 Stat. 984 (1948). In 1974, Congress amended the FTCA to permit actions "arising" from these willful torts when committed by federal "investigative or law enforcement officers." See Pub.L.No. 93-253, § 2, 88 Stat. 50 (1974), codified at 28 U.S.C. § 2680(h). Because, as the government has conceded, Stephens was an "investigative officer," Brown's malicious prosecution claim was properly brought under the amendment.

The grant to federal district courts of jurisdiction to maintain FTCA claims provides for governmental liability "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b) (emphasis supplied). This requires us to look to the tort law of the state where the federal agent acted. United States v. Muniz, 374 U.S. 150, 153, 83 S.Ct. 1850, 1853, 10 L.Ed.2d 805, 809 (1963); Bettis v. United States, 635 F.2d 1144, 1147 (5th Cir. 1981); Mundt v. United States, 611 F.2d 1257, 1259 (9th Cir. 1980) (suit under 28 U.S.C. § 2680(h)).

The trial judge held that, to recover damages for malicious prosecution in Texas, the plaintiff must prove seven elements: (1) a criminal action was commenced against him; (2) the prosecution was caused by the defendant or with his aid; (3) the action terminated in the plaintiff's favor; (4) the plaintiff was innocent; (5) the defendant acted without probable cause; (6) the defendant acted with malice; and (7) the criminal proceeding damaged the plaintiff. This is a correct statement of Texas law. See Bass v. Metzger, 569 S.W.2d 917, 924 (Tex.Civ.App.1978).

The first three elements were stipulated. After a five day trial, the trial judge held that Brown was in fact innocent and that Stephens acted without probable cause. However, he found that Stephens acted without malice. The determination of malice in malicious prosecution cases is a question of fact. Nesmith v. Alford, 318 F.2d 110, 123 (5th Cir. 1963), (applying Alabama law) cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964); Gleghorn v. Koontz, 178 F.2d 133, 136 (5th Cir. 1949) (applying Texas law); Good Holding Co. v. Boswell, 173 F.2d 395, 399 (5th Cir. 1949), cert. denied, 338 U.S. 815, 70 S.Ct. 55, 94 L.Ed. 493 (1949). On appellate review, such conclusions are reversible only if clearly erroneous. Rule 52(a), Fed.R.Civ.P.

The government has not contested the district court's finding that Stephens acted without probable cause. We must determine only whether the court's finding that Stephens acted without malice is clearly erroneous.

The district court properly recognized that, under Texas law, malice may be inferred from the lack of probable cause or from a finding that the defendant acted in reckless disregard of the other person's rights. Bass v. Metzger, 569 S.W.2d at 923. The inference is permissible, but not inevitable.

With ample support from the record, and the benefit of personal evaluation of Stephens's testimony, the district court found that, while Stephens had made a number of incorrect statements, the "misstatements were not intentional and resulted from motives other than a malicious desire to prosecute Mr. Brown." The district judge also found that during the federal investigation, "Mr. Stephens had always behaved impartially toward Brown even to the extent of providing that District Attorney with certain exculpatory evidence." Because the conclusion that Stephens acted without that malice indispensable to liability has substantial support in the record and is not plainly contraindicated, we accept it as not clearly erroneous without condoning Stephens's unprofessional behavior. We, therefore, affirm the dismissal of Brown's malicious prosecution claim.

III.

The district court said nothing about the constitutional claims set forth in the complaint. We must, however, consider whether they provide any ground for either reversing the district court's decision or vacating for further findings of fact. See Armstrong v. Collier, 536 F.2d 72, 77 (5th Cir. 1976).

In his complaint, Brown alleged that Stephens's actions violated rights guaranteed by the fourth and fifth amendment. These claims have never been explicated at any length. As best as we can determine, Brown contends that the giving of false testimony violated the fourth amendment by leading to Brown's arrest without probable cause and violated the fifth amendment by denying Brown due process before a state grand jury and during two state jury trials. These claims are problematic at best; we cannot consider them, however, unless we determine that the United States has waived its sovereign immunity from these claims, enabling the district court to exercise jurisdiction.

In essence, Brown seeks to bring a Bivens action under the FTCA against the United States. 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 held "(t)hat damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials." Id. at 395, 91 S.Ct. at 2004, 29 L.Ed.2d at 626. Bivens also recognized, however, that the United States did not become vicariously liable for constitutional torts of its officials, reaffirming the accepted doctrine that the United States had not waived its sovereign immunity from such actions.

If Congress has dropped the sovereign shield, it did so in the same 1974 amendment that forms the basis for Brown's malicious prosecution action. See Birnbaum v. United States, 588 F.2d 319, 327-28 & n.18 (2d Cir. 1978); Norton v. United States, 581 F.2d 390, 393 & n.3 (4th Cir. 1978), cert. denied, 439 U.S. 1003, 99 S.Ct. 613, 58 L.Ed.2d 678 (1978). The language of the amendment opens for decision to related questions: whether the government accepted liability only for the six common law torts listed in the amendment or whether its waiver is broader and extends to any constitutional deprivation that might arise out of actions similar to those torts; and, in either event, whether the definition of the cause of action is determined by the law of the state where the allegedly wrongful act was committed or whether it reaches further and provides governmental responsibility for every action for which an individual officer would himself be liable under Bivens. While the answer to these questions may be different, we consult the same sources in considering them.

Read in isolation, the amendment might appear to sanction recovery not only for the six torts but to all claims for constitutional violation that arise from such tortious acts:

the provisions of this chapter and Section 1346(b) of this title shall apply to any claim...