IN RE Vander Zee ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50081
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
15530 CLOUD TOP, SAN ANTONIO, BEXAR COUNTY, TEXAS,
Defendant,
HARLAN D. VANDER ZEE,
Movant-Appellant,
versus
STONE OAK NATIONAL BANK; ET AL.,
Claimants,
STONE OAK NATIONAL BANK,
Claimant-Appellee,
STONE OAK BANKSHARES, INC.,
Appellee.
- - - - - - - - - - - - - - - - - - - - -
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ONE 1988 GMC 1500 SLX SIERRA PICK-UP TRUCK,
VIN: 1GTDC14K9JZ510015,
Defendant,
HARLAN D. VANDER ZEE,
Movant-Appellant,
versus
STONE OAK NATIONAL BANK,
Claimant-Appellee,
STONE OAK BANKSHARES, INC.,
Appellee.
- - - - - - - - - - - - - - - - - -
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ONE 1989 MERCURY GRAND MARQUIS,
VIN: 2MEBM75F3KX603496,
Defendant,
HARLAN D. VANDER ZEE,
Movant-Appellant,
versus
STONE OAK NATIONAL BANK,
Claimant-Appellee,
STONE OAK BANKSHARES, INC.,
Appellee.
- - - - - - - - - - - - - - - - - - -
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ONE 1989 LINCOLN TOWNCAR,
VIN: 1LNBM81F8KY610520,
2
Defendant,
HARLAN D. VANDER ZEE,
Movant-Appellant,
versus
STONE OAK NATIONAL BANK,
Claimant-Appellee,
STONE OAK BANKSHARES, INC.,
Appellee.
- - - - - - - - - - - - - - - - - - -
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
UNITED STATES CURRENCY, FUNDS, PROCEEDS, AND
MONIES REPRESENTED BY AND INCLUDING ANY AND
ALL PRINCIPAL AND INTEREST RELATED THERETO
TO CERTIFICATES OF DEPOSIT #00950, #00951,
#00952, #00953, #00962, #00963, #01004,
#01167, #01168 AT THE STONE OAK NATIONAL BANK,
SAN ANTONIO, BEXAR COUNTY, TEXAS,
Defendant,
HARLAN D. VANDER ZEE,
Movant-Appellant,
versus
STONE OAK NATIONAL BANK; ET AL.,
Claimants,
STONE OAK NATIONAL BANK,
Claimant-Appellee,
STONE OAK BANKSHARES, INC.,
Appellee.
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No. 98-51157
In re: HARLAN D. VANDER ZEE,
Petitioner.
Appeal from the United States District Court
for the Western District of Texas, San Antonio
(SA-89-CV-364 & SA-90-CV-113)
June 11, 1999
Before GARWOOD, DUHÉ and BENAVIDES, Circuit Judges.
PER CURIAM:*
These consolidated proceedings are an appeal (our cause no.
98-50081) by Harlan D. Vander Zee of the district court’s denial of
his motion to intervene in the consolidated forfeiture actions in
the San Antonio Division of the Western District of Texas (civil
no. SA-89-CA 3064) and Vander Zee’s “Alternative Petition for A
Writ of Mandamus” (our cause no. 98-51157), which states it is
filed “in the event this Court determines that the direct appeal
[of the denial of intervention] is somehow unavailable.”
Prior proceedings by Vander Zee in this Court include the
following: Vander Zee v. Reno, 73 F.3d 1365 (5th Cir. February 2,
1996) (Vander Zee I); Vander Zee v. Reno, No. 95-50482 (5th Cir.
Oct. 4, 1996) (unpublished) (Vander Zee II); and Vander Zee v.
Stone Oak Bankshares, No. 95-50795 (5th Cir. May 19, 1997)
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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(unpublished) (Vander Zee III).
The judgment in the forfeiture action in which Vander Zee
sought to intervene was entered in August 1992. That judgment
approved and incorporated a settlement agreement and addendum
between the United States and Stone Oak National Bank (the bank)
which included a provision to the effect that the bank would give
written assurance to the United States Attorney for the Western
District of Texas that it would not rehire Vander Zee (formerly its
executive vice president) in any capacity.
That agreement is referenced in Vander Zee I, 73 F.3d at 1367.
Vander Zee I was an appeal from the dismissal of Vander Zee’s suit,
filed in August 1993 in the Austin Division of the Western District
of Texas, and not a part of the forfeiture action, asserting Bivens
claims for damages against certain individual federal officials and
claims against the United States for declaratory and injunctive
relief as to the bank’s said agreement respecting not rehiring
Vander Zee. In part II of Vander Zee I, we addressed only the
claims against the United States for declaratory and injunctive
relief. Id. at 1371-72. We there noted that the Administrative
Procedure Act (APA) “provides for judicial review of ‘agency
action’ and waives sovereign immunity for claims ‘seeking relief
other than money damages,’” 5 U.S.C. § 702, but that “the federal
courts are specifically excluded from the APA’s definition of
‘agency’ by § 701(b)(1)(B)” and that the settlement agreement
specifically provided it was not effective until approved by order
of the district court. Id. As a result, Vander Zee’s claims for
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declaratory and injunctive relief against the United States in
substance sought “to collaterally attack the district court’s order
approving the terms of the settlement,” for which “the proper
avenue would be to seek to intervene before the district court
which has retained jurisdiction in order to enforce the terms of
its order.” Id. at 1372. A footnote was then appended stating:
“Should the district court in that proceeding deny
intervention or, although granting intervention, deny
Vander Zee relief, he could seek review of each order by
direct appeal (or, perhaps, mandamus, should direct
appeal be for some reason unavailable).” Id. at 1372
n.8.
Vander Zee’s motion to intervene references the above passage
of Vander Zee I to which the above-quoted footnote is appended, and
his mandamus references the footnote.
In Vander Zee II, we affirmed the April 1995 dismissal of a
damages suit filed by Vander Zee in July 1994 in the Austin
Division of the Western District of Texas against the United States
under the Federal Tort Claims Act (FTCA) and against various
present or former federal officials in their individual capacities,
including a former Assistant Attorney General, a former United
States Attorney and former Assistant United States Attorneys, an
FBI agent, and employees of the Office of the Comptroller of the
Currency—some of which individual defendants were also defendants
in Vander Zee I—for diverse state law torts and Bivens claims.
Vander Zee III was a suit, likewise in the Austin Division of
the Western District of Texas, by Vander Zee against the bank, its
successor, and their liability insurer, for various torts,
including conspiracy and intentional infliction of emotional
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distress, and for breach of contract, including breach of an
alleged oral contract to rehire him after the money-laundering
litigation was over and a contract to pay his attorney’s fees
incurred in defending the criminal money-laundering charges. The
district court dismissed all claims except the mentioned contract
claims on motion for summary judgment or for directed verdict. The
two referenced contract claims were submitted to the jury, which
awarded Vander Zee $293,750 on the reemployment contract claim and
$43,750 on the contract to pay the attorney’s fees claim. The
district court granted the defendants’ motion for judgment
notwithstanding the verdict on Vander Zee’s breach of contract to
reemploy claim, and on October 5, 1995, rendered judgment for
Vander Zee in the amount of $43,750 on his contract to pay
attorney’s fees claim and for all the defendants on all other
claims by Vander Zee. Vander Zee appealed and in Vander Zee III we
affirmed that judgment.
Vander Zee filed his motion to intervene in the San Antonio
forfeiture case on April 7, 1997. In the intervention, Vander Zee
sought to bring claims, including damages claims, against the
bank—and its successor—and the United States and to join as parties
to the forfeiture action and bring tort and Bivens damages cross-
actions against four individual defendants, including a former
United States Attorney and two former Assistant United States
Attorneys who had been parties defendant in Vander Zee I and Vander
Zee II. These tort and Bivens claims were essentially the same as
those litigated previously in one or more of Vander Zee I, Vander
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Zee II, and Vander Zee III. It is evident that the essential and
overwhelmingly predominant purpose of the attempted intervention
was to relitigate the damages claims previously litigated in the
referenced other suits in the Austin Division of the Western
District of Texas. Vander Zee’s intervention papers asserted,
however, that in September 1995, in the trial of Vander Zee III, he
had learned new facts which warranted such relitigation.
The motion to intervene was opposed by the United States and
by the bank and its successor.
On November 18, 1997, the district court denied the motion to
intervene, stating:
“(1) there is no longer a live case or controversy before
the Court; (2) the motion to intervene is untimely; (3)
the would-be intervenor does not have sufficient interest
relating to the property at issue in this consolidated in
rem action to satisfy Federal Rule of Civil Procedure
24(a)(2); (4) would-be intervenor’s claims share no
questions of law or fact with this civil forfeiture
action; and (5) post-judgment intervention almost five
years after these cases were conclusively resolved will
substantially prejudice both the United States and Stone
Oak National Bank.”
After thoroughly considering the record, the briefs, and the
argument of counsel, we conclude that: (1) Vander Zee has
demonstrated neither any reversible error in the district court’s
denial of intervention sought under Fed. R. Civ. P. 24(a) nor any
abuse of discretion in the district court’s denial of intervention
under Fed. R. Civ. P. 24(b) and (2) Vander Zee has demonstrated no
adequate grounds for issuance of mandamus. Accordingly, so far as
Vander Zee appeals the denial of intervention under Rule 24(a), the
district court’s judgment is AFFIRMED; so far as Vander Zee appeals
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the denial of intervention under Rule 24(b), the appeal is
DISMISSED; and, Vander Zee’s petition for writ of mandamus is
DENIED.
AFFIRMED in part, DISMISSED in part; mandamus DENIED
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