Morast v. Lance

Decision Date14 January 1987
Docket NumberNo. 86-8333,86-8333
Citation807 F.2d 926
Parties, RICO Bus.Disp.Guide 6521, 2 Indiv.Empl.Rts.Cas. 1230 Robert H. MORAST, Plaintiff-Appellant, v. T. Bertram LANCE, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

David G. Archer, Cartersville, Ga., for Robert B. Morast.

Anthony L. Cochran, Chilivis & Grindler, Atlanta, Ga., for T. Bertram Lance & Kris Corp.

Nickolas P. Chilivis, Edmund M. Kneisel, Kilpatrick & Cody, Atlanta, Ga., for Calhoun First Nat'l.

Charles M. Williams, Calhoun, Ga., for Thomas B. Lance, Jr.

Groze Murphy, Jr., Jones & Murphy, Calhoun, Ga., for David J. Lance, Clifford Booker & NW GA Computer.

T. Joseph Campbell, Calhoun, Ga., for Tom B. David & Dean D. Hayes.

William P. Bailey, Bailey & Bearden, J. Lane Bearden, Calhoun, Ga., for C.E. Harris, Jack Holldand, P.J. Whittemore.

David K. Smith, Chance & Maddox, Ronald F. Chance, Sr., J.C. Maddox, Calhoun, Ga., for J.C. Maddox and Desmond Cummings.

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

Before GODBOLD and VANCE, Circuit Judges, and SWYGERT *, Senior Circuit Judge.

GODBOLD, Circuit Judge:

Robert Morast filed this action against Calhoun First National Bank alleging that he was wrongfully fired from his position at the bank in violation of his constitutional rights, his rights under federal civil rights statutes, his rights under the National Banking Act, his rights under federal and state RICO statutes, and public policy. The district court dismissed Morast's nine-count complaint for failure to state a claim upon which relief can be granted and lack of subject matter jurisdiction. We affirm.

I. FACTUAL BACKGROUND

Morast served as executive vice-president for defendant bank for four years. As executive vice-president he was responsible for the operation of the bank's branch offices. Morast also served as president and member of the board of directors of Northwest Georgia Computer Services (NGCS), a wholly owned subsidiary of the defendant bank. Morast received praise for his job performance in both capacities. 1

On October 12, 1984 Morast was notified by Marvin Taylor and Lamar Harrison, other officers of defendant bank, of an irregular transaction in the bank accounts of Bert Lance, then chairman of the board of directors of the bank. On October 10 Bert Lance's personal secretary had requested the defendant bank to issue a cashier's check for $86,000 from the account of Beverly Lance, Bert Lance's son, payable to The Kris Company, a corporation owned by Bert Lance's family. The defendant bank issued the cashier's check against no offsetting funds. Upon further inquiry, Morast learned that as of October 12 the bank had received no funds from Bert Lance or Beverly Lance to offset the cashier's check.

Acting upon the advice of the defendant bank's attorney, James Langford, and one of the bank's directors, J.C. Maddox, Morast reported the irregular transaction to the Comptroller of the Currency, as required by the National Banking Act. Morast also cooperated fully with the Comptroller's subsequent investigation.

On June 12, 1985 Morast was fired from his positions at the defendant bank and NGCS. Morast alleges in his complaint that his discharge was without justification and was purely in retaliation for his reporting the irregular transaction and cooperating with the subsequent investigation. Morast's complaint contains nine counts, six of which are federal claims and three of which are pendent state claims. We lack subject matter jurisdiction over these claims. 2 Although we believe it is wrong to discharge a bank officer in retaliation for his reporting a banking violation, it is up to Congress, not the courts, to provide for an effective remedy.

II. DISCUSSION
A. Federal causes of action

The district court did not have subject matter jurisdiction merely because the defendant bank was a federally chartered bank. See Southern Electric Steel Co. v. First Nat'l Bank of Birmingham, 515 F.2d 1216, 1217 (5th Cir.1975). Therefore, the district court could obtain subject matter jurisdiction only if one or more of Morast's claims involved a question of federal law.

1. Violation of 42 U.S.C. Sec. 1985(1)

Section 1985(1) prohibits, in relevant part, the following conspiracies:

If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof....

42 U.S.C. Sec. 1985(1) (1982). The purpose of this section is to proscribe conspiracies that interfere with the performance of official duties by federal officers. Kush v. Rutledge, 460 U.S. 719, 724, 103 S.Ct. 1483, 1486, 75 L.Ed.2d 413 (1983). Morast contends that as a bank officer, he was a person holding "any office, trust, or place of confidence under the United States." Although national banks are heavily regulated by federal statutes and regulations, and although national bank officers have a legal obligation to ensure that their banks comply with these laws and regulations, national banks are not so much the "instrumentalities" of the federal government that its officers are agents of the federal government. See Canlis v. San Joaquin Sheriff's Posse Comitatus, 641 F.2d 711, 717-18 (9th Cir.), cert. denied, 454 U.S. 967, 102 S.Ct. 510, 70 L.Ed.2d 383 (1981). 3

2. Violation of 42 U.S.C. Sec. 1985(2)

Section 1985(2) prohibits, in relevant part, the following conspiracies:

If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified....

42 U.S.C. Sec. 1985(2) (1982). Morast alleges that the defendants tried to deter him from testifying at a hearing before the Office of the Comptroller of the Currency (OCC). Morast contends that because such testimony was "in a matter pending in federal court pursuant to continuing Judgment and Orders of the United States District Court for the Northern District of Georgia," the conspiracy related to testimony before "any court of the United States."

Section 1985(2) applies only if the conspiracy attempted to prevent the witness from attending or testifying in federal court. Kimble v. D.J. McDuffy, Inc., 648 F.2d 340, 348 (5th Cir.) (en banc), cert. denied, 454 U.S. 1110, 102 S.Ct. 687, 70 L.Ed.2d 651 (1981). Morast's testimony was before the OCC, an administrative agency, not a federal court.

Even if Morast's testimony before the OCC is sufficient here, Morast has not alleged that the defendants conspired to stop him from attending or testifying at the hearing "by force, intimidation, or threat." Morast contends only that defendants retaliated against him with anger and vindictiveness, extensive questioning regarding leaks to the press, exclusion from board meetings, and a decreased workload. 4

Finally, to make out a cause of action under Sec. 1985(2) the plaintiff must have suffered an actual injury. Because Morast was an at will employee, see 12 U.S.C. Sec. 24 (Fifth); O.C.G.A. Sec. 34-7-1 (1981), he had no constitutionally protected interest in continued employment. Therefore, Morast's discharge did not constitute an actual injury under this statute.

3. Violation of 42 U.S.C. Sec. 1986

Because a Sec. 1986 action is predicated on a successful conspiracy action under Sec. 1985, Morast has no cause of action under Sec. 1986.

4. "Bivens" action

Morast alleges that he has a claim against the defendants for First and Fifth Amendment violations pursuant to 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). In Bivens the Supreme Court held that private citizens have a cause of action for damages for Fourth Amendment violations by federal officers acting under color of federal law, notwithstanding the absence of a congressionally authorized cause of action. Courts have extended this principle to plaintiffs seeking to bring actions under the Fifth Amendment, see Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Eighth Amendment, see Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), and the First Amendment, see, e.g., Dellums v. Powell, 566 F.2d 167 (D.C.Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978).

Assuming that a plaintiff can assert a Bivens action against a private party, 5 the defendants did not act under color of federal law here.

Because the concept of action under color of federal law for purposes of a Bivens action is almost identical to the doctrine of action under color of state law for purposes of a Sec. 1983 action, we will apply the concepts of state action to Morast's Bivens claim. In Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) the Supreme Court held that whether state action is involved depends on the particular circumstances of the case. The Court explained that "to fashion and apply a precise formula for recognition of state responsibility ... is an 'impossible task' which 'This Court has never attempted.' " Id. at 722, 81 S.Ct. at 860 (quoting Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093 (1947)). Although there is still no precise formula for evaluating state action, essentially three tests have emerged since Burton: (1) the symbiotic relationship test; (2) the public function test; and (3) the nexus test.

The actions by the defendants clearly do not meet the first two tests. Under the symbiotic relationship test, sometimes called the joint action test, the court must consider whether the government "has so far...

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